(1) Congress has authorized citizens dissatisfied with the Environmental Protection Agency's (EPA's) rules implementing the Clean Water Act's (CWA's) National Pollutant Discharge Elimination System (NPDES) permitting program to seek judicial review of those rules in the Courts of Appeals. See 33 U.S.C. § 1369(b). Congress further specified that those rules cannot be challenged in any civil or criminal enforcement proceeding. Consistent with the terms of the statute, multiple circuit courts have held that if a rule is reviewable under 33 U.S.C. § 1369, it is exclusively reviewable under that statute and cannot bechallenged in another proceeding.
Did the Ninth Circuit err when, in conflict with those circuits, it held that a citizen may bypass judicial review of an NPDES permitting rule under 33 U.S.C. § 1369, and may instead challenge the validity of the rule in a citizen suit to enforce the CWA?
(2) In 33 U.S.C. § 1342(p), Congress required NPDES permits for stormwater discharges "associated with industrial activity," and delegated to EPA the responsibility to determine what activities qualified as "industrial" for purposes of the permitting program. EPA determined that stormwater from logging roads and other specified silvicultural activities is non-industrial stormwater that does not require an NPDES permit. See 40 C.F.R. § 122.26(b)(14). Did the Ninth Circuit err when it held that stormwater from logging roads is industrial stormwater under the CWA and EPS’s rules, even though EPA has determined that it is not industrial stormwater?
ResourcesDecker v. Northwest Environmental Defense Center (NEDC), U.S. Supreme Court Docket, http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/11-338.htm
Preview, Decker v. Northwest Environmental Defense Center (NEDC), ABA, http://www.americanbar.org/publications/preview_home/11-338and11-347.html
9th Circuit Opinion, available at, http://www.ca9.uscourts.gov/datastore/opinions/2011/05/17/07-35266.pdf
Decker v. Northwest Environmental Defense Center, Scotus Blog, http://www.scotusblog.com/case-files/cases/decker-v-northwest-environmental-defense-center/
The transcript is available here, while the audio recordings should be available the end of the week.