*1 FORESTER, DECKER, OREGON STATE et al. v. NORTHWEST ENVIRONMENTAL
DEFENSE CENTER Decided March2013* Argued No. 11-338. December Inc., West, et al. v. North- 11-347, Georgia-Pacific with No. *Together same court. Center, to the on certiorari west also Environmental Defense *3 Court, Roberts, in Kennedy, J., which opinion delivered Sotomayor, Kagan, JJ., joined, Thomas, Ginsburg, Alito, and J.,C. and Roberts, J., I filed Scalia, J., and II. C. joined and in which as to Parts Scalia, J., Alito, J., joined, post, p. 615. in concurring opinion, which p. dissenting part, post, in 616. opinion an and concurring part filed or decision of the cases. Breyer, J., part took no in the consideration Timothy Bishop S. for both petitioners the cause argued in No. 11-347 for petitioners him the briefs cases. With on damage, Bulger, Jeffrey Mi- Chad Sarles, Richard W. were Ramfjord, Feldman, Kimberly, Leonard J. Per A. chael B. Sargent. Morgan, F. Ro- Ellen K. Jason T. and Willliam Mary Williams, H. senblum, of Oregon, General Attorney Joyce, General, Anna M. General, Solicitor Deputy Attorney Lagesen, and Erin C. filed General, Attorney Assistant 11-338. briefs for No. petitioners
Deputy Stewart for Solicitor General the cause argued curiae urging United States as amicus reversal both Ver- General were Solicitor cases. him on the brief With Deputy Attorney Moreno, Assistant rilli, General Assistant Attorney Shah, General A. and Aaron Shenkman, Pratik P. Avila.
Jeffrey argued respondent L. Fisher the cause for in both cases. him Karlan, With on the brief were Debo Pamela S. Kampmeier, Christopher Sivas, rah A. Winter, Paul A. G. and Kevin K. † Russell
†Briefs of amici curias urging reversal in both cases were filed for the McDaniel, State of al. by Attorney Arkansas et Dustin Arkan General of sas, Estes, Attorneys General, Charles Moulton and Eric Assistant Senior Jones, and General, by Kendra Akin Attorney Assistant and the Attor neys respective General for Strange their as follows:Luther of Ala States bama, Geraghty Alaska, Florida, Michael C. of Pamela Bondi of Sam Jo uel S. Georgia, Idaho, Olens of Lawrence F. Greg G. Wasden of Zoeller of Indiana, Kansas, Kentucky, Derek Conway Schmidt of of D. Jack James “Buddy" Louisiana, Maine, Caldwell of Bill William of J. Schneider Michigan, Missouri, Schuette of Mississippi, Jim Hood of Koster of Chris Montana, Nebraska, Steve Bullock of Bruning Jon of Catherine Cortez Nevada, Masto of A. Delaney Hampshire, Roy Cooper Michael New of of Carolina, North Ohio, Oklahoma, Michael DeWine of E. Pruitt of Scott Kelly Pennsylvania, Linda L. Carolina, Marty of Alan Wilson J. of South Dakota, Jackley of South Jr., Tennessee, Greg E. Cooper, Robert Abbott Texas, Utah, Mark L. Virginia, T. II of Kenneth Cuccinelli Shuttle'ff Robert M. Washington, Virginia, McKenna of Darrell McGraw West and Gregory A. Phillips Wyoming; American Resource for the Forest by Council et Lobdell; al. Scott Horngren W. M. for the Asso Caroline ciation of Oregon by Counties et al. Ronald S. Yockim and Daniel Gail Chadwick; for by Murray Law Professors Brian J. and Kevin P. Holewin- ski; for the National Alliance Elgar- of Forest Owners et al. Clifton ten, Nathanson, Kirsten L. Murray; Chung, David Y. and William R. the National Governors Association al. E. et Roderick Walston *4 Soronen; Lisa E. Legal by Hop for the Pacific M. Reed Foundation et al. per Damien M. Schiff; Society by Ryan and for the L. Ruffed Grouse Woody; for Society by Virginia and the of American Foresters et al. Albrecht, Murdock, Eric Ryan J. and A. Shores. Quentin Riegel
Thomas J. Ward and for filed a brief of amici curiae the National urging Association of et al. reversal Home Builders No. 11-338.
Briefs of amici urging curiae 11-347 were filed for the reversal No. Banks, by Christopher American Farm Bureau Federation et al. T. James Handman, Steen, T. Mary Helen Michael C. For- Wimberly, Ellen and opinion the Court. the delivered Kennedy Justice question Water present the Clean the whether These cases require permits regulations before implementing and Act its logging roads can dis- runoff from channeled stormwater navigable of the United States. charged waters into the permit regulations, implementing its the statute and Under discharges to be “associated required are deemed if the §1342(p)(2)(B). activity.” U. S. C. with industrial (EPA Agency), Agency with Protection Environmental regulation responsibility issued Act, the has to enforce activity” to defining industrial with “associated term conveyance any is used for discharges “from cover directly conveying collecting and that water storm and manufacturing, processing stor- or raw materials related 122.26(b)(14) plant.” age (2006). 40 CFR areas at an industrial interprets to exclude at issue type roads from of stormwater 24-27. as Amicus Curiae here. Brief for United States explained, concludes the Court For reasons now to be interpretation of its own EPA’sdetermination is a reasonable consequence, to the regulation; is accorded deference and, 452, 461 interpretation Robbins, 519 U. S. Auer v. under Business Small Independent mica; Federation and for National by Karen R. Earned. Legal Business Center were filed for the in both cases Briefs of amici curiae urging affirmance R. Lozeau Michael by Center et al. Information Environmental Protection H. Knudsen and Sanne by Duggan; and Sharon E. Law Professors for by Advocates et al. Wildermuth; Amy Environmental J. for Northwest Associa- Coon; of Fishermen’s Federation James S. for Pacific Coast of the Ameri- Glitzenstein; Division R. the Western Eric by for tions et al. by Boyles; L. for Kevin Boston Kristen Society by al. can Fisheries et Tai. Stephanie Goho; Shaun A. Wayland et al. Robert and for the Chamber Com- cases for Briefs of amici curiae were filed both Gasaway, Jeffrey R. by Robert of America merce of the United States Brand, Conrad, Rachel L. Nielson, Clark, Robin S. L. Bossert Aaron LaPlante; M. for the Gilbert; Allison Sheldon Law Professors Lechner. by Steven J. Legal Foundation Mountain States *5 602
I—I A Congress passed the Act in Clean Water 1972 to “restore physical, biological and integrity maintain the chemical, 1251(a). Nation’s waters.” 86 U. S. C. Stat. provision requirement A central indi- the Act corporations, governments viduals, secure National (NPDES) Discharge permits System Pollutant Elimination pollution discharging any point before source from into navigable 1311(a), §§ waters the United States. See 1362(12);EPA v. rel. ex State Water Resources California Control Bd., The Act defines “point source” as
“any conveyance, discernible, confined and discrete in- cluding any pipe, but ditch, not limited to tun- channel, rolling nel, conduit, well, fissure, discrete container, feeding operation, stock, concentrated animal or vessel floating pollutants may or other craft, from which are or discharged. agricultural term This does not include discharges irrigated stormwater and return flows from 1362(14). agriculture.”
When the effect, Act took found it the EPA difficult process permit applications oper- from countless owners and point country. throughout Agency ators of sources regulations types issued exempting point-source certain discharges permitting from the NPDES but scheme, in 1977 Appeals those directives were found invalid. Court of for the District of ruled that the Columbia Circuit statute give exempt categories did “authority point permit requirements” sources from the of the Act. Natural Resources v. 2d Council, Costle, Inc. 568 F. Defense response regulations 1369, 1377. In the EPA new issued precision categories define with more which qualified point place. Among sources in the first these *6 regulations Rule. This rule the so-called was Silvicultural provides: It is at here. issue any point discernible, means con- source
“Silvicultural crushing, conveyance related to rock discrete fined and storage sorting, log gravel washing, log facilities operated ac- with silvicultural in connection which are discharged pollutants are into and from which tivities include The term does not waters of United States. nursery non-point such as activities source silvicultural operations, preparation, and subse- reforestation site burning, thinning, prescribed quent treatment, cultural harvesting operations, pest surface control,' fire and drainage, maintenance from and or road construction 122.27(b)(1) § natural, CFR runoff.” 40 which there is discharge logging- any quoted from a rule, Under the point requires qualifies an as a source source that related statutory provi permit federal unless some other NPDES coverage. provision, exempts In one such it from that sion exempted §1342(p), Congress certain dis has S. C. statutory exemptions charges runoff. The of stormwater necessary outset, from the because, were considered determining recurring EPA had encountered difficulties g., manage discharges e. Nat See, of this kind. how best to 2d EPA, 1292, Inc. v. 966 F. Council, ural Resources Defense (CA9 1992). Congress responded In 1987, 1295-1296 problems adopted various stormwater-related these 33 U. S. C. Act. 101 Stat. amendments to the §1342(p). permit- exempt the NPDES
The amendments from entirely ting “discharges composed of stormwa- scheme most general exemption, §1342(p)(l). does however, ter.” discharges. here, As relevant not extend to all stormwater permits require Congress continue the EPA to directed discharges activ- with industrial “associated stormwater ity.” 1342(p)(2)(B). The statute does not define that (hereinafter adopted regulation term, but the EPA Indus- Rule) trial Stormwater it as which it defined discharge any conveyance “the for col- from that is used lecting conveying directly storm water and that is manufacturing, processing related or raw materials storage plant. areas at an industrial term does include from activities facilities or excluded program part from the NPDES For the under this 122. categories of section, industries identified in this term includes, but is not water to, limited storm dis- charges . from . . immediate rail access roads and lines *7 by used or traveled of manufac- materials, carriers raw products, by-products tured waste or material, or used 122.26(b)(14). facility created .. . .” 40 CFR specified The Industrial Stormwater Rule that, also with exception one “[f]acilities here, not relevant classified as Classificatio[n] Standard Industrial 24” are “considered be engaging activity’ purposes paragraph in ‘industrial for (b)(14).” Ibid. The Standard Industrial Classifications are system agencies categorize used en- federal firms gaged types activity. Dept, in different of business Labor, online Manual, Standard Industrial Classifications (as http://Avww.osha.gov/pls/imis/sic_manual.html at visited file). Mar. 14, 2013, and in case available Clerk of Court’s Standard Industrial Classification 24 identifies industries in- App. in volved 2 field of Products.” “Lumber and Wood industry, “[e]s- “Logging” 64. This includes the defined as primarily pro- engaged cutting in tablishments ducing timber and primary . . . forest or wood raw materials.” Ibid. days On November 30, 2012—three before instant argued cases were EPA issued its final this Court—the version of an amendment the Industrial Stormwater Rule. Agency’s response The amendment to the Court of was the Appeals’ ruling now under review. The amended version
605 clarify types Standard Indus- of facilities within seeks to engaged to be 24 that are deemed trial Classification activity purposes The amended rule. industrial facilities does not cover all Rule Industrial Stormwater 24. It limits cov- Industrial .Classification within Standard discharges to ered stormwater
“ Industrial [facilities Classi- within Standard classified crushing, Industry Group that are rock 241 24, fication storage op- log sorting, gravel washing, log facilities activities . . . with silvicultural erated connection Reg. Industry Groups through 77 Fed. 242 249.” pt. subpt. B Industry explanation, by way that an noted,
It should In- subcategory Group within Standard businesses is a “Logging,” Group Industry 241 is dustrial Classification. respectively, Groups through Industry are, while Plywood, Planing Veneer, “Millwork, Mills,” “Sawmills and and “WoodBuild- Containers,” Wood,” and Structural “Wood Industry Group 249 is “Miscella- ings and Mobile Homes.” through Groups Industry Wood Products.” neous categories. Classifications Industrial Standard are blank Major Group swpra, 24. Manual, regulation is to say purpose the amended
It is fair to process bring permit those within the NPDES (rock *8 activity types crush- operations four that involve the facilities) storage log sorting, ing, gravel washing, log and explicit point terms of sources that are defined Rule. Silvicultural have
Up stage litigation, course, the cases in the to this be- Rule Industrial Stormwater with the been concerned adopted 2012. The 30, November on fore the amendment point from this whether determine amended will required permits for the stormwa- will be forward NPDES sig- disagree parties about the discharges ter at issue. The purposes cases. of these rule for amended nificance of the reaching preliminary Before points, however, this and other appropriate history it is to set forth the facts and of the cases leading proceedings to the in this Court.
B discharges At issue are of channeled stormwater runoff logging Oregon’s from two in Forest, roads Tillamook State lying Range in the Pacific Coast about 40 miles west of Port- Georgia-Pacific along log- land. Petitioner with West, other ging paper-products companies, and has a contract with the Oregon State of harvest timber from forest. It uses (which purpose. the roads for that When it rains it does in Oregon, often averaging mountains of northwest year), some per areas more than 100 inches water runs off graded system roads into a culverts, of ditches, and chan- discharge nearby nels that the water into rivers and streams. discharges large often contain amounts of sediment, gravel form of dirt and crushed from the roads. There is evidence aquatic that this runoff can harm fish and other organisms. September
In respondent Northwest Environmental (NEDC) Defense Center filed suit the United States Dis- Oregon. trict Court for the District of It invoked the Clean provision, Water Act’s citizen-suit 33 U. S. and C. named as defendants certain firms involved paper-products operations (including petitioner Georgia- West), governments Pacific as well as state and local (including officials Oregon, the state forester of is who now petitioner Decker). Doug alleged The suit that the defend- ants caused of channeled stormwater runoff into waterways—the two South Fork Trask and the River Little South Fork Rilchis River. The defendants had not obtained permits, alleged, they NPDES and so, the suit had violated the Act.
The District Court dismissed the action for failure to state permits claim. It concluded that NPDES were not re-
607 culverts, because ditches, channels were not quired sources of the Act and the point under Silvicultural pollution Rule. The Court of for the Ninth Circuit reversed. Appeals v. Brown, Northwest Environmental Center 640 Defense (2011). F. 3d 1063 three It relied upon principal proposi- First, tions. it that Court held the District had subject- matter jurisdiction under different notwithstanding of the provision Act, 1369(b)(1), U. S. C. limiting judicial review Second, the Court of regulations. Appeals held that Rule while the EPA’s Silvicultural is ambiguous on the at issue conveyances whether are question point sources, those be deemed must sources conveyances point under the rule in order to effect to the Act’s give expansive definition of the term. the Court of held Third, Appeals Rule because the Industrial cross- Stormwater makes 24, the reference to Standard Industrial Classification dis- at issue with industrial charges activity” are “associated within the of the the EPA’s con- meaning despite regulation, un- clusion to the was held to be contrary. on this The Court of thus ruled ambiguous Appeals point. that the sources and not exempt were from point from the the Industrial NPDES scheme permitting had been in Stormwater Rule. It followed petitioners violation of the Act. (2012).
This Court certiorari. 567 U. S. granted H-f to consider Before to the it is merits, necessary proceeding two jurisdictional questions.
A invoked the District Respondent NEDC jurisdiction § 1365(a), Court under 33 U. C. which private “authorize^] Clean Water Act]” enforcement provisions [the Energy Department v. its implementing regulations. Ohio, Petitioners, however, 503 U. S. n. 5 607, 613, *10 provision by separate
maintain that this suit a is barred 1369(b). § “judicial provides the Act, for re- That statute par- appeals view in the United of various States courts of by including [EPA] ticular Administrator, actions estab- permits lishment of effluent standards and issuance of discharge pollutants.” County Sewerage Au- Middlesex thority Assn., v. National 453 U. S. 13- Sea Clammers (1981). 14 available, Where it is the exclu- that review is by challenging sive statute, means actions covered § 1369(b)(2), application lodged an for review must be appeals days the court of within 120 of the Administrator’s 1369(b)(1). § action, Appeals
The Court of to rule that was correct the exclu- jurisdiction applicable sive suit. mandate is not this Sec- 1369(b) only challenging tion extends to some certain suits Agency actions. court It does from enter- not bar a district taining § against a citizen an suit under when suit is 1365 alleged obligation imposed violator and an seeks to enforce by regulations. the Act or its § present scope action of 1365. It is a is within the reading permissible
claim to enforce what is at least a ambiguous: Silvicultural Rule. The rule is Its characteriza- harvesting operations tion of silvicultural which there “from 122.27(b)(1), nonpoint is natural source runoff,” CFR as might petitioners apply be read, as to to the chan- contend, might neled re- stormwater runoff at it be issue; read, spondent urges, apply only not collected NEDC to runoff engineered improvements. in channels or other See New 2010)(Oxford Diet.) (3d Dictionary Oxford American ed. (“natural” “existing nature; means in or not made caused humankind”). reading or caused make would NEDC’s pollution point-source under channeled here only interpretation squared the Act. In can its view this “point with the Act’s 33 U. S. C. broad definition of source.” 1362(14). premise, On suit is an effort this the instant it under a challenge but enforce Rule the Silvicultural “regulations, interpretation. proper tenet It is a basic with the statute consistent valid, must be order to be they promulgated.” v. Lari United States are under which 431 U. S. onoff, unnecessary jurisdictional purposes, to determine it is
For reading arguing is correct whether NEDC It permitted Act. suf- under the Rule is the Silvicultural “pur- adopt urges the Court to fices to note that NEDC bring reading ... to poseful permissible but De- harmony Environmental the statute.” it into with . . . *11 Energy Corp., 561, 573 U. S. 549 v. Duke fense . . . implicit that the “an declaration NEDC does not seek a re- regulations And, Ibid. as invalid as written.” were 1369(b) jurisdictional to this suit. bar is not a sult,
B justiciable principle case III that a of Article “It is a basic stages review, controversy at all must remain extant complaint States merely is filed.” United at the time the (in- curiam) (2011)(per 936 932, v. U. Male, Juvenile 564 S. omitted). requires principle us quotation This ternal marks to the recent amendment the EPA’s to determine whether In a moot. the cases Rule makes Industrial Stormwater argument, petitioner supplemental after oral filed brief joined by curiae, takes amicus Decker, the United States cases position makes these the recent amendment Supp. Petitioners part. Brief for moot in See relevant Supp. 4-8. pp. United States for 4-6; Brief 11-338, No. moot case becomes “A That conclusion is incorrect. grant any impossible effectual relief a when it is court Em- prevailing party.” v. Knox Service whatever to the (internal (2012) quotation marks ployees, 298, 307 567 U. S. omitted). con- despite a live amendment, the recent Here, petitioners regarding troversy whether continues to exist may discharges be held liable for under the earlier unlawful version of the Industrial Rule. Stormwater
Respondent peti- press claim that NEDC continues discharges tioners’ are the amended unlawful under both Supp. and the Brief for Re- earlier version. spondent provide in- 3-13. The cases no occasion to instant “ terpret regulation. ‘[W]e are court of re- amended ” view, Fish not of first view.’ Arkansas Comm’n Game (quoting v. States, ante, United at 37 v. Wilkinson, Cutter (2005)). parties, however, have n. litigated extensively suit based on the earlier version of governed Rule; Industrial and that version Stormwater petitioners’ past discharges, might basis for the which be the imposition penalties types inif, future, even those require permit. will not Appeals petitioners
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(1926).
R. Co.,
NEDC discharges activity” unambiguously covers with industrial logging roads. Chev channeled runoff from stormwater Council, Inc., A. ron U.S. Inc. Natural Resources v. Defense over view, however, 467 U. 842-843 That multiple terms “industrial” looks definitions activity “industry.” refer to business These words can activity yet they general, “economic so be limited to too can processing of materials and manufac concerned with the raw goods 887. The latter Diet. ture of factories.” Oxford necessarily encompass outdoor does timber definition specific harvesting. more does not foreclose The statute Agency, provides no detail since further definition it scope. as to intended pre- plausible claim that the
Somewhat more NEDC’s Rule un- Stormwater amendment version of the Industrial discharges ambiguously required permit at for the issue. categories “[f]or rule, NEDC reasons that under the permits are re- NPDES section,” industries identified in this things, quired among water “storm for, other used or traveled from . . roads . . . . immediate access 122.26(b)(14). Yet 40 CFR carriers of materials.” raw “categor[y] question is a this raises the whether regulation goes industr[y]” by the section. The identified *13 identify “categories on to con- list that “are of facilities” engaging activity’ purposes” sidered to be in ‘industrial for of the Industrial Stormwater Ibid. In the earlier Rule. regulation, “[facilities version classi- this list included Classification] fied as Standard Industrial which 24,” encom- passes “Logging.” supra, Hence, Ibid. at 604. See also logging categories among NEDC asserts, of industries discharges for which “storm water from... immediate access roads . . . used traveled or carriers raw materials” required permits NPDES the earlier of the under version 122.26(b)(14). Industrial fur- Stormwater Rule. NEDC support reading regulation, ther notes, in of its logging large-scale, highly modern ais mechanized enter- prise, using sophisticated weighing up harvesting machines Respondent to 20 tons. See Brief for 4-5.
The EPA It takes different view. concludes that regulation earlier invoked Industrial Classification Standard “ regulate 24 ‘to traditional sources such saw- industrial as mills.’” Brief for Amicus 24-25. United States as Curiae points regulation’s It to the reference “facilities” and the suggest classification’s “establishments,” reference to which permanent industrial sites more fixed and than outdoor timber-harvesting operations. Reg. Ibid. See also 55 Fed. reading 47990, In- This is reinforced discharges dustrial Stormwater Rule’s associ- definition convey- any activity ated with industrial “from collecting conveying ance that is for storm used water directly manufacturing, processing and that is related to storage plant.” raw materials 40 CFR areas at an industrial 122.26(b)(14). language support This to the EPA’s lends temporary, claim that the does not cover outdoor Agency installations. It was reasonable conveyances “directly conclude that the only are related” at issue harvesting “man- materials, of raw rather than to ufacturing,” “processing,” storage or “raw materials areas.” (some- “mak[ing] (manufacturing Oxford Diet.
613 machinery”); (proc- thing) large using id., at 1392 aon scale essing “perform[ing] mechanical or chemical a series of it”). change preserve operations (something) in order or on type logging general a if matter is addition, In even , scope, activity regulation’s the rea- of economic within regulation require interpretation could still of the sonable way operations discharges to be a direct the related subject plant” in to be to NPDES “at an industrial order permitting. noting that elsewhere in the conclusion, this
NEDC resists required the has NPDES Rule EPA Industrial Stormwater permits discharges associated with other for stormwater 122.26(b)(14)(iii) § activity. types of outdoor economic (landfills 122.26(b)(14)(v) § (mining); receiving industrial sites). 122.26(b)(14)(x) waste); (large construction types reasonably however, that these conclude, could permanent fixed than activities to be timber- tend more operations harvesting connection to are and a closer have language light In of the traditional industrial sites. regulation just the inclusion of moreover, these discussed, activity types Rule in the Stormwater economic Industrial discharges stormwater read to that all need be mandate just rule, the as the related to these activities fall within logging to all to extend dis- need not read inclusion of be regulation’s may charges reach be from sites. The “directly requirement that limited the manufacturing, processing or raw materials stor- related to 122.26(b)(14). plant.” age areas at an industrial interpretation agency’s need It is well that an established regulation—or only reading possible even the of a not be interprets prevail. agency its own When an one—to best regulation, general rule, to it “unless as a defers Court, ‘plainly interpretation inconsistent with erroneous McCoy, regulation.’” N. v. USA, Bank A. Chase 461). (2011) (quoting at S., Auer, U. S. together, permissible interpretation Taken one. EPA’s is a regulation’s “facilities,” “establishments,” references to “manufacturing,” “processing,” plant” and an “industrial open interpretation leave the rational buildings extends to traditional such industrial as fac- relatively tories and sites, associated as well as other fixed facilities.
There is another reason to accord Auer deference to the interpretation: EPA’s There is no indication that current change prior justifica- practice post view is a from or a hoc *15 adopted response litigation. Christopher tion in v. to Corp., SmithKline Beecham The opposite Agency is the case. has been consistent in its types require view that the issue here do not at permits. NPDES against background
The EPA’s decision exists of state regulation respect logging with to stormwater runoff from Oregon roads. The State of made an extensive effort has develop comprehensive practices manage of best set practices logging stormwater runoff from in- roads. These mandating clude rules filtration of stormwater runoff before it enters rivers and Admin. Rule streams, Ore. 629-625- 0330(4) (2012); requiring companies logging to construct using surfacing roads the in runoff, minimizes sediment 629-625-0700(2); Rule obligating opera- firms to cease prevent tions where such efforts fail to visible increases 629-625-0700(3). turbidity, Oregon in water Rule has in- money establishing vested substantial time and in these practices. development, siting, In addition, the mainte- regulation particular nance, roads—and of state Oregon forest roads—are pertise. areas which has considerable ex- exercising gives In the Act broad discretion the the Agency EPA in the realm runoff, of stormwater could reasonably have concluded that further federal duplicative counterproductive. this area would be In- Congress given express deed, has instructions the EPA to work “in with consultation State and local officials”to alie- developing precise pollution by kind of viate stormwater practices Oregon management has established here. 33 best § 1342(p)(6). U. S. C. preamendment the Industrial version of Stormwater Agency, exempts permissibly dis-
Rule, as construed charges from channeled stormwater runoff roads permitting from As a there result, the NPDES scheme. argument petitioners’ no reach need to alternative conveyances question “pipe[s], ditch[es], channels], are not point any type of within tunnel[s], conduit[s],” or other source 1362(14). the Act’s definition of the term. Ap- judgment of
For the the Court of stated, reasons proceed- peals are reversed, and the cases remanded ings opinion. consistent with this
It is so ordered. Breyer part in consideration or deci- took no Justice sion these cases. with whom Justice Alito Roberts,
Chief Justice *16 joins, concurring. dissenting part opinion concurring part in in and
The principle questions in set forth raises serious about (1945), S. 410 Co., Bowles v. & 325 U. Seminole Rock Sand (1997). may appro- and Auer U. It Robbins, v. 519 S. 452 appropriate priate principle case. in an to reconsider that that But this is not case.
Respondent suggested reconsidering in Auer, one sen- argument. Brief for Re- tence in a no footnote, with again spondent in it, do 12. Petitioners said don’t 42, n. p. Reply in 11-338, 4, No. Brief for Petitioners footnote. See Broadcasting System, FCC, n. Inc. v. 1; see also Turner (1997) question (declining that decide 180, 223-224 only argumentation”). 22 amicus Out of received “scant dueling professors— groups of law briefs, two—filed addressed the on Brief issue the merits. See for Law Pro- Propriety Sup- fessors on the of Administrative Deference port Respondent; Support Brief for Law Professors System, Putney see Health Petitioners; also v. Phoebe FTC (declining argument Inc., 568 U. S. n. 4 to consider amicus). only by raised going
The is a issue basic one to the heart of administra- tive Questions law. Rock and Auer deference Seminole regular arise as a matter of course on a basis. The bar is reconsidering now that is aware there some interest in those argu- has cases, and available to it a statement of the concise ments on one side issue. properly
I would await a case in the issue raised which is argued. they present and should be decided as cases existing argued, precedent. have been and briefed under Justice Scalia, concurring part dissenting part. join agree opinion; I I Parts and II of the I Court’s these eases are not had moot that the District Court jurisdiction. join gives I do not there Part III. Court reading Agency’s effect to a Environmental Protection regulations simply that is not the most natural because one, says reading right. that it believes It the unnatural vividly though Agency this, does moreover, even has il- precisely saying lustrated that it can it write a rule what means—by doing just being while these were cases briefed.
Enough enough.
I good giving For decades, reason, and for no we have been agencies authority say under mean, what their rules harmless-sounding “defer[ring] agency’s to an banner interpretation regulations.” America, Inc. of its own Talk *17 (2011) Michigan Telephone v. Bell Co., 564 U. S. 67 concurring). generally J., is called Seminole This (Scalia, Rock or Auer & deference. Bowles v. Seminole Rock
617 (1945); 519 Robbins, U. S. Auer v. Co., Sand 325 U. S. (1997). ago, my separate concurrence Talk Two Terms validity prac- expressed of this the I doubts about America, agency’s interpretation of however, that the case, tice. In party us one, and no had asked fairest the rule was also the Today, the Court’s deference however, to reconsider Auer. (note defen- Agency the Court’s to the makes the difference interpretation Agency’s not need be that the sive insistence 613). respondent us, has asked And ante, at one,” “the best ” “ necessary, it is time I believe that if to ‘reconsider Auer.’ Respondent Brief n. also 12; see Brief for to do so. See Propriety Def- of Administrative for Law Professors on the especially the true because Amici Curiae. This is erence as Auer’s, par- flaws in a cases illustrate circumstances of these ticularly way. vivid that we is of Auer deference
The canonical formulation interpretation agency’s rules unless of its own an will enforce “plainly interpretation or inconsistent with erroneous that supra, But of regulation.” at 414. Rock, the Seminole regula interpretation agency’s the course whenever reading, it is in sense fairest tion is different from the Obviously, regulation. is not “inconsistent” with prac nothing In enough, Auer to do. or there would be regula applied to deference tice, Auer deference is Chevron A. Inc. v. Nat U.S. tions rather than statutes. See Chevron Council, Inc., ural Resources Defense though accepted agency’s not interpretation if, will plausible regulation, reading read it is fairest ambiguity ing—within scope that the contains. justification put persuasive forward
Our cases have apply it, Seminole case to The first for Auer deference. ipse whatever—just justification dixit no Rock, offered interpretation of con- . . . becomes that “the administrative plainly inconsistent trolling weight it erroneous unless *18 618 regulation.”
with the 414. S., 325 U. at Our later cases provide principal explanations, two neither of which has generally Stephenson Pogori much to be said for it. See & ler, Seminole 1449, Rock’s 79 L. Rev. Domain, Geo. Wash. (2011). say agency, 1454-1458 some that the First, cases special insight the drafter of the have some rule, will into g., its enacting Occupational intent when it. E. Martin v. Safety and Health Review 499 Comm’n, 144, U. S. 150-153 (1991). implied premise argument—that The of this what looking agency’s we adopting are for is the intent regulations rule—is false. There is true of what is of true put inquire statutes. As Justice Holmes do not what it: “We legislature only meant; we ask what the statute means.” Theory Legal Interpretation, of 12 L. Harv. Rev. (1899). by governing Whether made rules are the Na Legislature agency, tional or an administrative we are bound they say, unexpressed what intention those of who made them. provide agency other rationale our cases is that the
possesses special expertise administering “‘complex highly regulatory g., program.’” technical See, e. (1994). Thomas Univ. v. 512 U. S. Shalala, Jefferson enough, agen That is true and it leads to the conclusion that cies regulations. and not courts make But it should has nothing interpret regulations—unless to do with who should purpose interpretation one believes that the is to make regulatory program work in fashion that the current leadership agency Making regula deems effective. tory programs purpose rulemaking, effective is the agency “special expertise” which the uses its to formulate purpose interpretation best rule. But the is to deter meaning “say mine the fair is,” of the rule—to what the law Marbury v. Madison, 137, 177 Not make Cranch policy, policy pro but to determine what has been made and mulgated by agency, public to which the owes obedience. (and leadership agencies policy Indeed, since the hence the preferences agencies) changes with Presidential adminis- agency application trations, an head can be sure that the “special expertise” by regula- of his to the issue addressed given predictable principles tion will be if we adhere to effect interpretation “special of textual rather defer than to the expertise” agency of his If we successors. take enact- *19 background written, ments as the Executive has a stable against policy which to write its and achieve the rules ends it thinks best. justification
Another conceivable for Auer deference, though not one cases, that is to be found our is If this: it agencies regarding meaning is reasonable to defer to the of Congress per statutes that as we do it enacted, Chevron, is regarding meaning a reasonable to defer to them the fortiori regulations they give of themselves To an crafted. agency regulations meaning less the its own control over meaning congressionally than it has over the of a enacted quite statute seems odd. (take theory
But it is not odd at all. The of Chevron it or it) Congress gives agency authority leave is that when an to including authority interpre- administer to statute, a issue regulations, implicitly agency degree tive it the a accords respect, regarding discretion, the must which courts the (South meaning Smiley of the v. Citibank statute. See Da- kota), impli- N. A., 517 U. 740-741 While the agency power clarify cation of an to the statute is reasonable enough, surely implication congressional there is no that the agency ambiguities regulations. can resolve own its For principle separation that would violate a fundamental powers—that power power the to write law and the to a interpret legis- it cannot rest the same hands. “When the powers person lative and executive same are united the may liberty; apprehensions ... there can be arise, no because tyrannical lest the same monarch or senate should enact tyrannical laws, to execute them in a manner.” Montes- (O. quieu, Spirit pp. XI, 151-152 Piest of the Laws bk. ch. 1949). enlarge Congress Nugent cannot its ed., T. transí. vague in power through leaves it own Chevron—whatever by someone else. Chevron the be worked out statute will Execu- represents presumption the as between who, about (The Judiciary, Ex- will be. else tive and the that someone way—the competing political branch—is ecutive, Congress power congenial repository is far as as less concerned.) speak clearly Congress’s to as incentive is So important. possible regards on it as the matters agency interprets rules—that
But when own an augmented something power prescribe Then else. to speak interpret; power is to incentive and the “flexibility” broadly, vaguely will as to retain so per- “It is with effect. enable “clarification” retroactive vague regula- fectly agency understandable” an to “issue agency doing power.” “maximiz[e] tions” if will Thomas so dissenting). supra, J., at Univ., (Thomas, Jefferson power Combining power prescribe inter- with the practice pret is not a new evil: Blackstone condemned *20 resolving laws” of the Roman doubts about “the construction by writing, tak[ing] “stat[ing] emperor in and the case the to opinion upon on the his Commentaries Blackstone, it.” 1 W. (1765). England did not Laws of 58 And our Constitution using a practice Lords as mirror the British of the House of part he has of last the fear that who resort, court due in to “agency passing might operate in “same in the bad laws” spirit” interpretation. 81, Federalist No. in The their (J. 1961). encourages pp. deference 543-544 Auer Cooke ed. agencies plan “vague framing regulations, with the to be issuing ‘interpretations’ the intended new law of to create procedures.” and comment without observance of notice They Anthony, Supreme APA: Sometimes and the The Court (1996). 1,11-12 Auer Just Don’t 10 L. J. Am. U. It,Get Admin. dangerous permis- logical corollary a is not a to but Chevron arrogation slip power. 564 America, See Talk sion for the Manning, concurring); Constitu- atS., J., 68-69 (Scalia, Interpre- Agency and to tional Structure Judicial Deference Agency L. Rules, tations of 96 Colum. Rev. 612 enough has the same bene- It is true that Auer deference country pragmatic ficial effect as Chevron deference: uncertainty by divergent produced the need not endure appeals as to views of numerous district courts courts regulation, reading a the fairest until definitive what is of the by finally provided, years later, this Court. answer is speak, agency’s upon, unless is, can be it so to view relied uncertainty pro- beyond pale. But the the duration , long by vague regulation as the a need not as duced uncertainty produced by vague as soon as an statute. For a uncongenial agency interpretation pronounced the to amending begin process agency the court, district can meaning entirely cir- clear. The to make its point. these While cumstances of this case demonstrate being a rule de- us, briefed before issued cases were signed Appeals judgment respond arewe the Court (2012) (to reviewing. Reg. be codified Fed. B). (by subpt. pt. standards of did so It CFR things) relatively quickly: The was such decision below pub- May 2012 EPA in December down in handed setting terms unmistakable lished an amended rule forth respect position argues And there is another it here. Chevron-type has less severe a lack of deference which pragmatic consequences In than statutes. rules for permits many agency rule an that its when believes cases, simply arguably it can exercise forbids, conduct that the text possible, prosecute. That not to discretion party has violation harmed course, when, here, standing compel enforcement. *21 gains may efficiency any great
In be the case, however justify cannot Auer beneficial effect deference, derived from only principled contravenes a rule that basis but has no powers: great separation He who writes one of the rules of adjudge a law its violation. must not
p-HhH using I would therefore resolve these cases the familiar interpretation petition- tools textual Is decide: what the proscribed reading regula- ers did here the fairest they tions? What did was to channel stormwater runoff logging permit. from roads without a To decide whether permissible possibly that was one, we must two, answer questions: discharged First, was stormwater from a “point permit required. source”? If not, no was if so, But we question: face the second Were the dis- stormwater charges exempt permit requirement they from the because activity”? were not “associated with industrial The fairest reading regulations of the statute and that these dis- charges point were from sources, with and were associated activity. industrial
A generally prohibits discharging pol- Clean Water Act permit lution “point without a from what it calls a source.” 1311(a). § “point 33 U. “any S. C. A source” is defined as conveyance, including discernible, confined and discrete but any pipe, not limited to ditch, channel, tunnel, conduit,” and 1362(14). § things. several other here stormwater discharged was through from roads series pipes, expressly ditches, and channels—all items named the definition. argues Rule, the Silvicultural 40 CFR 122.27(b)(1) (2006), “[silvi- from excludes the definition of point “harvesting
cultural operations source” ... from which says there Agency, is natural relevant, runoff.” This is “[sjilvicultural specifies point because that rule subject “point sources, as defined in this are sources section,” 122.27(a). permit program.” the . . . In view, EPA’s the stormwater here “natural runoff.”
But are stormwater “natural runoff” when they through pipes are channeled manmade and ditches, and *22 pollutants carry from manmade forest manmade with them Agency this is so—as the that roads? It is obvious agrees. as Amicus Curiae 19 States See Brief United (the log- associated with to ‘natural rule’s “reference runoff’ encompasses clearly ging clearly nor excludes roads neither case”). in this In that is at issue sort of channeled runoff Agency’s interpretation my giving would the term the view, “point source,” which contradict the statute’s definition [and] explicitly any “pipe, con- ditch, channel, tunnel, includes validity— presumption Applying interpretive duit.” meaning preserves “prefe[r] the canon that we are to destroys,” Refining meaning Panama Co. v. to the (1935) (Cardozo, dissenting)—I Ryan, J., 388, 439 293 U. S. regulation’s “natural runoff” exclusion of would that the hold The stormwater dis- here. does not reach the situation they charges point flowed out because sources, came from “pipe[s],” “channels],” 33 U. S. C. “ditch[es],” of artificial log- §1362(14), runoff” from a not “natural and were thus added). 122.27(b)(1) § (emphasis ging operation, 40 CFR B discharges Many point-source nonetheless are stormwater requirement. permitting exempt from the usual § exemption, 1342(p). however, does not reach This S. C. activity.” discharges Ibid. industrial “associated with defining it means for storm- what a rule has enacted industrial activ- with” water ity, “associated 40 CFR as “industrial.” and what activities count 122.26(b)(14). “categories industries”; as out 11 sets discharges industrial with “associated are industries, those “transportation” activity” they used for if from sites come “any here roads at issue The forest raw material.” Ibid. only question (logs); transport are raw material used to industr[y]” “categor[y] enumerated is whether is a “categories the definition. It is: The second of the listed “[facilities of facilities” is Industrial classified Standard 2434).” 122.26(b)(14)(ii). (except Open- Classifications 24 ing hymnal one’s to Standard Industrial Classification *23 (“Lumber Except Furniture”), and Wood Products, one finds industry group “Logging”— the first listed, No. is “[establishments primarily engaged cutting defined as (As App. enough, timber.” 64. if that were not clear product industry an helpfully illustrative of this is listed: “Logs.”) That, I would think, is that. disagrees, gives Agency’s position and the Court reading
Auer certainly deference, but that the most heavily natural one. The Court relies on the fact that the “[s]torm discharge definition of water associated with indus activity” requires trial discharge “directly that the related manufacturing, processing storage or raw materials areas 122.26(b)(14). § plant,” at an question industrial The crucial presents concluding this definition phrase is whether the “at (“raw plant” an only phrase industrial limits the last noun areas”) storage materials preceding or also the two nouns (“manufacturing” “processing”). interpre and The canon of tation known as the rule of the last antecedent states that limiting phrase “a ordinarily clause or . . . should be read as modifying only phrase immediately the noun or that it fol lows.” Barnhart v. Thomas, 540 U. S. If a provides gre statute possess that “it shall be unlawful to fully-automatic weapon, nade shotgun launcher, a or with a barrel shorter than 12 that a inches,” that does not mean grenade longer legal. launcher with a barrel than 12 inches is Application of the canon would mean that “at an industrial plant” storage modifies “raw materials areas,” and “manufacturing” “processing” anywhere, therefore that and including in the forest, would be “associated with industrial (Standard activity.” categorizes Industrial Classification manufacturing as a business, and these “directly manufacturing”) are therefore related to rule of the Like canons of last ante- all interpretation, indication of contrary cedent overcome textual can be here. To the But that does not exist meaning. contrary, to which the term enumerated categories the. industries reinforce the that “at proposition “industrial activity” applies “manufacturing” an industrial does not plant” modify (in addition to The term includes logging) “processing.” § 122.26(b)(14)(iii); “active or inactive mining operations,” § “automobile 122.26(b)(14)(v); and dumps,” “open “[IJandfills” 122.26(b)(14)(vi); activity and junkyards,” “Construction 122.26(b) excavation,” including clearing, grading (while (14)(x). Those related and activities industries at take virtually place never manufacturing processing) as a “plant.” like what describe anything might one as the cor- rule of last confirmed antecedent therefore limits industrial rect here: “at an plant” guide meaning *24 “raw materials only areas.” storage Amicus Cu- insists, EPA also Brief for United States as “ ”
riae ‘traditional’ that reaches But sources industrial sawmills. stormwater, such has a subcate- Standard Industrial specific Classification 24. (No. 242) Mills.” App. that and gory Planing is “Sawmills terms “Stand- limited, The rule not 64. so reaching 2434).” 122.26(b) ard 24 (except Industrial Classifieatio[n] (14)(ii). No. 2434 is telling: Why explicit carving-out in engaged EPA primarily chose to exclude “establishments and wood bathroom wood kitchen cabinet manufacturing stormwater, I do vanities” of industrial from the definition the exclusion lie gives nature of know—but picayune to be decided by to the idea that the rule’s scope ought meant to reach only If EPA had sense of its rough gestalt. do so. sawmills, knew how to obviously it quite Industrial Clas- the Court that Standard Finally, believes sification 24 n reference “suggest[s] “establishments” than outdoor and industrial sites more fixed permanent Ante, so. The at 612. Not operations.” timber-harvesting Standard Industrial Classification uses “establishments” throughout general; to refer for exam- to business entities ple, primarily “[establishments Classification 2411 refers to engaged cutting “producing timber,” which includes wood chips App. imagine in the field.” 2 I 64. cannot what kind permanent” of “fixed and site Court EPA industrial imagine “producing chips will be in the field.” And wood point, regulatory final ante, Court’s at 613—that the activity” definition of “industrial uses the word “facilities”— way: “facility” regulations cuts the other to in- define “any ‘point e.g., clude . . . see, source.’” 40 §122.2; CFR § 122.26(b)(14)(iii) “facilities”). (referring to mines as (Brief Agency also for assures us its intent 25) United States as Amicus was to reach a more Curiae limited activities, subset of an intent that it believes essentially can float free from the text of relevant rule. In the end, this is the real of the EPA states meat matter: simply require permits it did not mean for the dis- charges willing at issue here. Court is to credit And the given amply that intent, even what I has been demon- think contrary strated to abe text.
[*] [*] [*] pro- reading Agency’s Because the rules fairest scribes I cases, the conduct affirm at issue in these would (to judgment presume below. It is coin a time us phrase) says agency that an means, it rule what says means a rule what it there.