United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 9, 2011 Decided July 22, 2011
No. 09-1001
LAKE CARRIERS' ASSOCIATION,
PETITIONER
v.
ENVIRONMENTAL PROTECTION AGENCY,
RESPONDENT
CENTER FOR BIOLOGICAL DIVERSITY, ET AL.,
INTERVENORS
Consolidated with 09-1010, 09-1076, 09-1115
On Petitions for Review of a Final Action
of the Environmental Protection Agency
Barry M. Hartman argued the cause for petitioners. With
him on the briefs were Christopher R. Nestor and Shaun M.
Gehan. David E. Frulla entered an appearance.
Joel C. Mandelman was on the brief for amicus curiae
Nutech 03, Inc. in support of petitioners.
2
Martin F. McDermott, Attorney, U.S. Department of
Justice, argued the cause and filed the brief for respondents.
Deborah A. Sivas, Allison LaPlante, Daniel P. Mensher,
and Thomas Cmar were on the brief for intervenors Northwest
Environmental Advocates, et al. in support of respondents.
Eric T. Schneiderman, Attorney General, Office of the
Attorney General for the State of New York, Barbara D.
Underwood, Solicitor General, Monica B. Wagner, Assistant
Solicitor General, Lisa Burianek, Deputy Bureau Chief, Michael
Myers, Section Chief, Bill Schuette, Attorney General, Office of
the Attorney General for the State of Michigan, John J. Bursch,
Solicitor General, and Robert P. Reichel, Assistant Attorney
General, were on the brief for amici curiae States of New York
and Michigan.
Before: GARLAND and GRIFFITH, Circuit Judges, and
RANDOLPH, Senior Circuit Judge.
Opinion for the Court filed Per Curiam.
PER CURIAM: Trade associations representing commercial
ship owners and operators petition for review of a nationwide
permit issued by the Environmental Protection Agency (EPA)
for the discharge of pollutants incidental to the normal operation
of vessels. The petitioners raise a number of procedural
challenges, all related to EPA’s decision to incorporate into the
permit conditions that states submitted to protect their own
water quality. Because we find that the petitioners have not
shown that the additional procedures they request would have
had any effect on the final permit, we deny the petition for
review.
3
I
Section 301(a) of the Clean Water Act (CWA) prohibits
“the discharge of any pollutant by any person” into the waters of
the United States, except in compliance with the terms of the
Act. 33 U.S.C. § 1311(a). Section 402(a) provides one way in
which such discharges may take place without violating the
CWA. Under that section, EPA may issue a National Pollutant
Discharge Elimination System (NPDES) permit “for the
discharge of any pollutant . . . , notwithstanding section [301(a)]
. . . , upon condition that such discharge will meet . . . all
applicable requirements . . . of [the CWA].” Id. § 1342(a)(1).
EPA regulations explain that permits may be individual
(covering discharges from a single source, 40 C.F.R. § 122.21),
or general (covering “one or more categories or subcategories of
discharges . . . within a geographic area,” id. § 122.28(a)). Each
permit must set out the specific conditions necessary to ensure
that the permit holder’s discharge of pollution will comply with
the water standards mandated by the CWA. 33 U.S.C.
§ 1342(a)(2).
In conjunction with the permitting process, the CWA gives
states an express role in approving or barring discharges into
their navigable waters, and in setting out the conditions under
which such discharges may occur. Section 401 of the CWA
states that any applicant for a federal permit to conduct any
activity that “may result in any discharge into the navigable
waters, shall provide the . . . permitting agency a certification
from the State in which the discharge originates or will
originate . . . that any such discharge will comply with” national
and EPA-approved state water quality standards. 33 U.S.C.
§ 1341(a). The state must also set forth in its certification “any
effluent limitations and other limitations . . . necessary to
assure” that the permit holder “will comply” with CWA
standards “and with any other appropriate requirement of State
4
law.” Id. § 1341(d). These limitations “shall become a
condition” on any federal permit, id., and no “permit shall be
granted if certification has been denied,” id. § 1341(a).
The CWA defines “discharge of a pollutant” as, inter alia,
“any addition of any pollutant to navigable waters from any
point source.” 33 U.S.C. § 1362(12). A “point source” includes
a “vessel or floating craft,” id. § 1362(14), and “pollutant” is
defined to include “sewage from vessels,” id. § 1362(6). Thus,
discharges from vessels are regulated by the permitting and
certification scheme set out above.
Shortly after the CWA was enacted, EPA promulgated a
regulation exempting incidental vessel discharges from the
permitting (and therefore the certification) requirements of the
Act. Exempted discharges included “sewage from vessels,
effluent from properly functioning marine engines, laundry,
shower, and galley sink wastes, or any other discharge incidental
to the normal operation of a vessel.” 40 C.F.R. § 122.3(a). The
regulation was in force for more than thirty years. Then, in
2008, the Ninth Circuit affirmed a district court decision
vacating the regulation, finding that EPA lacked authority to
exempt incidental vessel discharges. Northwest Envtl.
Advocates v. EPA, 537 F.3d 1006 (9th Cir. 2008). After a stay
to allow EPA time to implement a means of issuing permits for
vessel discharges, the regulation was finally vacated on
February 6, 2009.
In response to the Ninth Circuit’s decision, EPA developed
a general permit, pursuant to section 402 of the CWA, to cover
the incidental vessel discharges previously exempted by the
regulation. See Final National Pollutant Discharge Elimination
System (NPDES) General Permit for Discharges Incidental to
the Normal Operation of a Vessel, 73 Fed. Reg. 79,473 (Dec. 29,
5
2008).1 The agency estimated that the Vessel General Permit
(VGP) would cover discharges from approximately 61,000
domestic-flagged commercial vessels and 8,000 foreign-flagged
vessels. Id. at 79,481. And unlike the majority of permits
issued under section 402, which cover discharges originating in
only a single state, the VGP would cover discharges in
waterways throughout the United States.
EPA published a draft VGP on June 17, 2008, and
established a 45-day comment period. Draft NPDES General
Permits for Discharges Incidental to the Normal Operation of a
Vessel, 73 Fed. Reg. 34,296 (June 17, 2008). The draft permit
set out all of the general EPA-mandated conditions for vessel
discharges, and indicated that the agency was seeking
certifications from each of the states pursuant to section 401.
U.S. EPA, PROPOSED GENERAL PERMIT (2008), at 53 (J.A. 286);
see Draft NPDES General Permits, 73 Fed. Reg. at 34,302. The
draft permit did not, however, include any of the certification
conditions to be imposed by the states pursuant to section 401.
73 Fed. Reg. at 34,302.
EPA received more than 170 comments on the draft permit.
Many suggested that, because state water standards differ, the
state certifications might result in conflicting conditions being
attached to the permit, thus unduly hindering vessels seeking to
remain in compliance as they move between the waters of
1
Also in response to the Ninth Circuit’s decision, Congress
passed two acts that exempted small boats and recreational and
commercial fishing vessels from the CWA’s permitting requirements.
See Clean Boating Act of 2008, Pub. L. No. 110-288, 122 Stat. 2650
(exempting recreational vessels); Permits for Discharges from Certain
Vessels, Pub. L. No. 110-299, 122 Stat. 2995 (2008) (granting a two-
year exemption for vessels less than 79 feet long and all commercial
fishing vessels).
6
different states. Some comments suggested that a single
uniform standard was necessary to minimize the burden on
interstate commerce. EPA acknowledged these comments, but
responded that the statute required certifications by the states in
which the discharges would originate and mandated that EPA
attach to the permit any conditions the states deemed necessary
to meet their specific water quality standards. Therefore, EPA
concluded, it could neither evade the certification process nor
alter certification conditions imposed by the states. EPA
Response to Comments, at 14 (J.A. 1052-91).
Twenty five states, two tribes, and one territory certified the
draft VGP and attached state-specific conditions. (The other
states, with the exception of Alaska and Hawaii, either certified
without conditions or waived their right to certify.) On
December 19, 2008, EPA’s final VGP became effective. Final
NPDES General Permit, 73 Fed. Reg. at 79,474. Part VI of the
permit, which was not included in the draft VGP, is composed
of approximately 100 state certification conditions. U.S. EPA,
VESSEL GENERAL PERMIT (VGP) (2008), at 62-104 (J.A. 825-
67). Vessels covered by the permit are required to adhere to the
general provisions of the VGP with respect to all discharges, and
are further required to adhere to any Part VI certification
condition imposed by a state into the waters of which the vessel
is discharging pollutants.
In 2009, Lake Carriers’ Association, Canadian Shipowners
Association, and American Waterways Operators filed petitions
for review of the final VGP. The petitions were consolidated
into the single suit now before us. The trade associations raise
three challenges. First, they contend that EPA erred in failing to
provide notice and an opportunity for comment on the final
VGP, which contained the state certification conditions.
Second, they charge that it was arbitrary and capricious for EPA
to issue the permit without considering the possible ill-effects of
7
the state certification conditions. Finally, they allege that EPA
failed to consider the costs of compliance with state conditions
in assessing the impact of the permit on small businesses, as
required by the Regulatory Flexibility Act (RFA), 5 U.S.C.
§ 601 et seq.2 The standard of review for these challenges is
governed by the Administrative Procedure Act (APA), pursuant
to which we determine whether the agency’s actions were
“arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law,” 5 U.S.C. § 706(2)(A), and whether the
permit was promulgated “without observance of procedure
required by law,” id. § 706(2)(D). See Owner-Operator
Independent Drivers Ass’n, Inc. v. Fed. Motor Carrier Safety
Admin., 494 F.3d 188, 198 (D.C. Cir. 2007).
II
The petitioners’ primary contention is that EPA failed to
provide notice and an opportunity for comment before
promulgating the final permit, as required by the APA, 5 U.S.C.
§ 553. EPA did provide for notice and comment regarding the
draft VGP, but the petitioners argue that this was insufficient
because the draft contained only the general EPA-mandated
conditions for vessel discharges; it contained none of the more
than 100 state certification conditions that were appended to the
final permit. The petitioners allege that they were therefore
deprived of the opportunity to comment regarding the potential
conflicts and burdens created by the cumulative effects of the
state conditions.
2
The petitioners satisfy the requirements for associational
standing because at least one member of each association would have
standing to sue in its own right; the interests they seek to protect are
germane to their purpose; and neither the claim asserted nor the relief
requested requires that an individual member participate in this suit.
Sierra Club v. EPA, 292 F.3d 895, 898 (D.C. Cir. 2002).
8
A
EPA’s first response to this contention is that section 401(a)
of the CWA excuses it from providing an additional round of
notice and comment regarding state certification conditions.
Section 401(a) requires that a certifying state “shall establish
procedures for public notice . . . and, to the extent it deems
appropriate, procedures for public hearings” in connection with
certification applications. 33 U.S.C. § 1341(a). EPA maintains
that this statute-specific state review procedure supplants the
APA’s notice-and-comment requirements.
This argument is unpersuasive. The APA instructs that a
“[s]ubsequent statute may not be held to supersede or modify
[the APA’s requirements] . . . except to the extent that it does so
expressly.” 5 U.S.C. § 559. Accordingly, although an agency
is excused from § 553’s mandate when a subsequent statute
“plainly expresses a congressional intent to depart from normal
APA procedures.” Asiana Airlines v. FAA, 134 F.3d 393, 398
(D.C. Cir. 1998), “[w]e have looked askance at agencies’
attempts to avoid the standard notice and comment procedures,
holding that exceptions under § 553 must be ‘narrowly
construed and only reluctantly countenanced,’” id. at 396
(quoting New Jersey v. EPA, 626 F.3d 1038, 1045 (D.C. Cir.
1980)). We doubt that section 401’s requirement that states
provide for notice and comment regarding proposed conditions
constitutes the requisite “plain express[ion]” of congressional
intent to supersede the APA’s requirements.3
3
EPA also contends that the APA’s notice-and-comment
requirements do not apply to the Vessel General Permit because it is
not a rule. As the agency recognizes, this contention runs headlong
into our decision in National Ass’n of Home Builders v. U.S. Army
Corps of Engineers, in which we held that a nationwide permit issued
under a different provision of the CWA was a rule within the meaning
9
B
We do find persuasive, however, EPA’s argument that the
petitioners have failed to show that EPA has power to amend or
reject the state certifications at issue in this case, and have thus
failed to establish that additional opportunity for comment
would have served any purpose. Notably, the petitioners never
argued that the certifications failed to “compl[y] with the terms
of section 40l,” City of Tacoma v. FERC, 460 F.3d 53, 67 (D.C.
Cir. 2006), by overstepping the traditional bounds of state
authority to regulate interstate commerce. We therefore need
not consider whether EPA has authority to reject state conditions
under such circumstances. Instead, the petitioners contend that
providing for notice and comment would not be purposeless in
this case on two other grounds, neither of which is availing.
1. First, they maintain that “[t]he plain language of sections
401 and 502 of the CWA instruct[s] that a section 401
certification” for a permit covering mobile point sources with
discharges in multiple states must be made by the Administrator
of EPA instead of by the states. Reply Br. 13. For such a
permit, they contend, the Administrator may accept input from
affected states but is not bound to include state-specific
certification conditions. Pet’rs Br. 38. In support, the
petitioners cite a sentence in section 401(a)(1) that provides: “In
any case where a State or interstate agency has no authority to
give such a certification, such certification shall be from the
Administrator.” 33 U.S.C. § 1341(a)(1). They also note that
section 401 repeatedly uses the terms “state” and “certification”
in the singular. And they further cite section 401(a)(2), which,
although it establishes a procedure for dealing with cases in
of the APA. 417 F.3d 1272, 1284-85 (D.C. Cir. 2005). In light of the
conclusion we reach in the following paragraphs, we need not address
EPA’s efforts to distinguish that decision.
10
which “a discharge” originating in the waters of one state
“affect[s] . . . the quality of the waters of” another, does not give
section 401 certification authority to the affected state. Id. at
§ 1341(a)(2); see Pet’rs Br. 36-37.
The long answer to this argument would require an analysis
of the statutory language. EPA argues that the cited sentence
from section 401(a)(1) gives the Administrator power to certify
a permit when a state lacks authority to do so under its own law,
not where no single state can certify for multistate discharges.4
In any event, the agency continues, no single state does certify
for multistate discharges under the VGP. Each state’s
certification applies only to discharges in its own waters, and a
state does not lose authority to certify such a discharge simply
because a vessel moves and then discharges in another state as
well. Nor, the agency maintains, is the fact that section 401 is
written in the singular persuasive: The Dictionary Act states
that, “unless the context indicates otherwise -- words importing
the singular include and apply to several persons, parties, or
things.” 1 U.S.C. § 1. Finally, EPA notes, section 401(a)(2) is
not relevant to this question: It applies when a single point of
discharge in one state may affect the waters of another state
(when, for example, a pollutant is carried downstream across
4
Cf. United States v. Marathon Dev. Corp., 867 F.2d 96, 99-
101 (1st Cir. 1989) (rejecting a claim that section 401(a)’s
certification requirement “applies only to individual permits, not
to general [nationwide] permits,” and holding that a Corps of
Engineers nationwide permit was inapplicable to discharges in
Massachusetts because the state had denied the requisite
certification); id. at 99-100 (finding that “Congress intended to
give the states veto power over the grant of federal permit
authority for activities potentially affecting a state’s water
quality”).
11
state lines), not when a vessel makes repeated discharges into
the waters of several states.
But there is a short answer to the petitioners’ textual
argument: they did not make it before the agency, and they have
therefore waived it. The petitioners’ comments on the draft
VGP did not contain any of the textual arguments they now
raise. Although the petitioners are correct that “[m]any
commenters requested that EPA avoid the practical issues posed
by numerous state conditions through a single promulgation,”
Reply Br. 25, none offered an interpretation of section 401 that
would have permitted EPA to issue the certification in place of
the states. And as we said in Natural Resources Defense
Council v. EPA:
We have previously held that failure to raise a
particular question of statutory construction before an
agency constitutes waiver of the argument in court.
See, e.g., Ohio v. EPA, 997 F.2d 1520, 1528 (D.C. Cir.
1993); Linemaster Switch Corp. v. EPA, 938 F.2d
1299, 1308 (D.C. Cir. 1991). In those cases, the parties
were not saved by the fact that they had made other
“technical, policy, or legal” arguments before the
agency.
25 F.3d 1063, 1074 (D.C. Cir. 1994); see Orion Reserves Ltd.
Partnership v. Salazar, 553 F.3d 697, 707 (D.C. Cir. 2009);
Nevada v. Dep’t of Energy, 457 F.3d 78, 88 (D.C. Cir. 2006);
Nat’l Mining Ass’n v. Dep’t of Labor, 292 F.3d 849, 874 (D.C.
Cir. 2002).
2. The petitioners also argue that providing notice and an
opportunity for comment would not have been “pointless”
because “there are at least two ways that the state conditions,
when considered together, create significant constitutional issues
12
that EPA failed to consider prior to issuing the VGP.” Reply Br.
9, 11. “First, the VGP appears to require that some regulated
entities violate one provision of the permit in order to comply
with another, a conundrum prohibited by fundamental principles
of due process.” Pet’rs Br. 46. Second, the petitioners contend
that the VGP may raise a problem under the “dormant
Commerce Clause[,] [which] prohibits states from adopting laws
that unduly burden interstate commerce.” Id. at 47 (citing
Kassel v. Consol. Freightways, 450 U.S. 662, 678 (1981)).
We are uncertain about exactly what the petitioners are
arguing here. They do not contend that the CWA itself is
unconstitutional, even as EPA construes it. Nor do they argue
on this appeal that the VGP is unconstitutional, even as EPA has
promulgated it.5
5
We recognize that the petitioners are attempting to chart a
difficult course on this appeal, which may account for the
awkwardness of some of their arguments. As they explain in their
brief, once the Ninth Circuit vacated the exemption for discharges
incidental to the normal operation of vessels, such discharges “became
subject to the discharge prohibition of section 301(a) of the CWA, 33
U.S.C. § 1311(a), unless covered under an NPDES permit.” Pet’rs Br.
7. If EPA had “chose[n] not to create a permit system at all, these
discharges, some of which inevitably occur . . . , would be illegal in
their entirety under the CWA[,] . . .[and] shipping and other marine
transportation would have come to a complete halt.” Id. at 7-8. To
avert such an outcome, “EPA decided to propose a nationwide general
NPDES permit program for incidental vessel discharges,” rather than
utilizing vessel-by-vessel or state-by-state permits. Id. at 8. The
advantage of a nationwide permit for companies that operate in
multiple states is obvious, and may explain why the “[p]etitioners are
not at this time challenging EPA’s use of a CWA nationwide general
permit,” but instead “focus on the procedure followed by EPA in
issuing the VGP.” Id. at 34 n.14.
13
As to the due process contention, the petitioners are careful
throughout to say only that it “might be impossible to comply
with one [state’s] condition without violating another,” Pet’rs
Br. 18 (emphasis added), not that it is impossible.6 But without
an inconsistency that makes it literally impossible to adhere to
one state’s requirements without breaching another’s, it is hard
to detect a due process violation on the face of the VGP.7
Indeed, it is hard to imagine how an inconsistency of such
magnitude could ever arise, given that “the state-specific
conditions” in the VGP only “apply in the waters of the state
that provided the conditions.” EPA Response to Comments, at
14-2 (J.A.1053).
As to the dormant Commerce Clause, the petitioners claim
only that “[a]llowing the specter of multiple states imposing
differing requirements on vessels that move through their
respective waters creates a . . . potentially impermissible[]
burden on commerce.” Pet’rs Br. 22 (emphasis added). We
note that even the italicized caveat is understated. Dormant
Commerce Clause doctrine applies only to burdens created by
state law. See, e.g., Kassel, 450 U.S. at 678. At issue here is a
federal statute, the CWA, and a federal regulation, the VGP. It
is true, as the petitioners observe, that Wyoming v. Oklahoma
6
See also Pet’rs Br. 18 (asserting that the “requirements added to
the final VGP contain potentially conflicting requirements” (emphasis
added)); id. at 45 (stating that the final VGP requirements are
“potentially inconsistent” (emphasis added)); id. at 46 (observing that
“the VGP appears to require that some regulated entities violate one
provision of the permit in order to comply with another” (emphasis
added)).
7
EPA, the intervenors, and the state amici vigorously dispute the
claim that Part VI of the VGP contains any such “‘impossible’
compliance dilemmas.” EPA Br. 43; see Intervenors’ Br. 37-38;
States of New York and Michigan Amicus Br. 27-30.
14
held that it takes an “unambiguous” expression of intent for
Congress to authorize a state to burden interstate commerce in
a way that would otherwise transgress the dormant Commerce
Clause. 502 U.S. 437, 458 (1992). But in Wyoming it was a
state law that was challenged, and the question was whether a
federal statute had authorized it. Here, it is a federal regulation
that is at issue.8 The CWA does not merely authorize state
certifications; it incorporates those certifications into federal
law. See Reply Br. 12 (acknowledging that, when the conditions
attached by each state “are aggregated in the final VGP[,] [they]
become federal requirements”); cf. Arkansas v. Oklahoma, 503
U.S. 91, 110 (1992).
Some passages in the petitioners’ brief suggest that they
may be making a “constitutional avoidance” argument,
contending that EPA must “construe and apply section 401 in a
manner” that avoids “creat[ing] significant constitutional
issues.” Pet’rs Br. 45-46 (citing, e.g., Edward J. DeBartolo v.
Fl. Gulf Coast Bldg. Constr. Trades Council, 485 U.S. 568, 574-
75 (1988)). But that canon comes into play only when a
contrary construction would raise “grave and doubtful
constitutional questions.” Rust v. Sullivan, 500 U.S. 173, 190-
8
In addition, the state statute at issue in Wyoming violated the
dormant Commerce Clause not simply by unduly burdening interstate
commerce, as is claimed here, but by discriminating against it. 502
U.S. at 458. The Supreme Court scrutinizes statutes of the latter kind
far more strictly than those of the former, id. at 454-55 & n.12, and
there are suggestions in Wyoming that the “unambiguous” expression
test was only intended for the latter, see id. (declaring that “Oklahoma
has not met its burden of demonstrating a clear and unambiguous
intent on behalf of Congress to permit the discrimination against
interstate commerce occurring here,” and that “Congress must
manifest its unambiguous intent before a federal statute will be read
to permit . . . such a violation of the Commerce Clause as Oklahoma
here seeks to justify” (emphases added)).
15
91 (1991). It has no applicability in a case like this one, in
which “there is nothing to avoid” from a constitutional
perspective. Cablevision Sys. Corp. v. FCC, No. 10-1062, 2011
WL 2277217, at *11 (D.C. Cir. June 10, 2011).
Perhaps the petitioners mean only to argue that EPA should
have construed section 401 so as to avoid creating
inconsistencies and burdens, even if such problems do not rise
to the constitutional level. But if that is what the petitioners
mean, they do not say so. More important, they do not point to
any text that could be construed to this end. The only text to
which they advert in this portion of their brief is section 101 of
the CWA, which states that the policy of the statute is to
“recognize, preserve, and protect the primary responsibilities
and rights of States to prevent, reduce, and eliminate pollution.”
33 U.S.C. § 1251(b). From this they infer that “section 401’s
certification process is designed to preserve state authority, not
to expand it.” Pet’rs Br. 48 (internal quotation marks omitted).
Whatever the validity of that inference, it still does not explain
how the text of section 401 might be read to permit EPA to alter
state certifications. Cf. Am. Trucking Ass’n v. EPA, 600 F.3d
624, 628 (D.C. Cir. 2010) (rejecting a challenge to EPA’s
approval of California vehicle standards because the petitioners
were “seeking improperly to engraft a type of constitutional
Commerce Clause analysis onto EPA’s . . . decision[] that is
neither present in nor authorized by the statute” (internal
quotation marks omitted)).9
9
In a footnote to their reply brief, the petitioners observe that
section 103 of the CWA tasks EPA to “‘encourage the enactment of
improved and, so far as practicable, uniform State laws relating to the
prevention, reduction and elimination of pollution.’” Reply Br. 13 n.5
(quoting 33 U.S.C. § 1253). The petitioners acknowledge that they
did not mention this provision in their comments during the
rulemaking, Oral Arg. Recording at 47:37, and, in any event,
16
Before concluding this Subpart, we note that EPA’s
resolution of this matter does not leave the petitioners without
recourse. If they believe that the certification conditions
imposed by any particular state pose an inordinate burden on
their operations, they may challenge those conditions in that
state’s courts. See Roosevelt Campobello Int’l Park Comm’n v.
EPA, 684 F.2d 1041, 1056 (1st Cir. 1982) (noting that “the
courts have consistently agreed . . . that the proper forum to
review the appropriateness of a state’s certification is the state
court”); see also City of Tacoma, 460 F.3d at 67. If they believe
that a particular state’s law imposes an unconstitutional burden
on interstate commerce, they may challenge that law in federal
(or state) court. See Am. Trucking Ass’n, 600 F.3d at 628 n.1.
And if neither of these avenues proves adequate, they are free to
ask Congress to amend the CWA, perhaps by reimposing the
exemption for incidental vessel discharges. See supra note 1
(noting that, in response to the Ninth Circuit’s decision vacating
the exemption, Congress passed two acts that exempted small
boats and recreational and commercial fishing vessels from the
CWA’s permitting requirements).
C
In sum, given the case law and the arguments that EPA had
before it, the agency correctly concluded that it did “not have the
ability to amend or reject conditions in a [state’s] CWA 401
certification.” EPA Response to Comments, at 14-11 to 14-12
(J.A. 1062-63) (citing Am. Rivers, Inc. v. FERC, 129 F.3d 99,
107, 110-11 (2d Cir. 1997)). Under those circumstances,
providing notice and an opportunity for comment on the state
arguments not raised until the reply brief are waived, see United States
v. $6,976,934.65, Plus Interest, 554 F.3d 123, 133 n.4 (D.C. Cir.
2009).
17
certifications would have served no purpose, and we decline to
remand to require EPA to do a futile thing.10
III
The petitioners’ remaining arguments fail for the same
reason that their notice-and-comment argument fails.
1. The petitioners maintain that EPA acted arbitrarily and
capriciously by not properly considering comments it received
regarding the draft permit. It is true that an agency acts
arbitrarily and capriciously when it “fail[s] to consider an
important aspect of the problem.” Motor Vehicle Mfrs. Ass’n v.
State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). And it
is also true that “the opportunity to comment is meaningless
10
See Hispanic Info. & Telecomm. Network, Inc. v. FCC, 865 F.2d
1289, 1294 (D.C. Cir. 1989) (declining to require additional
administrative procedures when “it would be a pointless formality in
which the result was preordained”); Metzenbaum v. FERC, 675 F.2d
1282, 1291 (D.C. Cir. 1982) (refusing to require notice-and-comment
review of “nondiscretionary acts,” as such review “was ‘unnecessary,’
and . . . a futile gesture”); see also Nat’l Ass’n of Home Builders v.
Defenders of Wildlife, 551 U.S. 644, 659-60 (2007) (declining to
remand where the alleged error “could have had no effect on the
underlying agency action”); PDK Labs. Inc. v. U.S. DEA, 362 F.3d
786, 799 (D.C. Cir. 2004) (noting that, “[i]f the agency’s mistake did
not affect the outcome, . . . it would be senseless to vacate and remand
for reconsideration”); City of Waukesha v. EPA, 320 F.3d 228, 246
(D.C. Cir. 2003) (noting that, “[t]he APA requires petitioners to show
prejudice from an agency procedural violation,” and that “[i]n making
such a showing in the context of a violation of notice-and-comment
requirements, petitioners may be required to demonstrate that, had
proper notice been provided, they would have submitted additional,
different comments that could have invalidated the rationale” for the
rule).
18
unless the agency responds to significant points raised by the
public.” Home Box Office, Inc. v. FCC, 567 F.2d 9, 35-36 (D.C.
Cir. 1977).
The comments that the petitioners allege the agency ignored
concerned “the prospect that [varying state certification]
requirements would be likely to present serious problems” for
vessel operators moving from state to state. Pet’rs Br. 39. EPA
did not, however, fail to respond to those comments. To the
contrary, it told the commenters the same thing it has told this
court: that under the CWA, “it is not possible to have a ‘single
nationwide system’ that does not accommodate the states’
ability to include state-specific requirements to implement their
own water quality standards and requirements.” EPA Response
to Comments, at 14-5 (J.A. 1056); see also id. at 14-3 to 14-6
(J.A. 1053-57). Because on this record, EPA was correct in its
assertion that it lacked authority to alter or reject certification
conditions even if they presented difficulties for the operators,
see supra Part II, further consideration or response was
unnecessary. Cf. City of Portland v. EPA, 507 F.3d 706, 714-15
(D.C. Cir. 2007) (holding that an agency has no obligation to
respond to comments that are “incapable of affecting the final
rule”).11
11
The petitioners also argue that “EPA’s failure to consider . . .
the resulting patchwork created by the varying section 401
requirements, run[s] afoul of the uniformity principles of federal
maritime law that trace their roots to Medieval times and the Laws of
Oleron.” Pet’rs Br. 42. But EPA responded to this argument as well,
noting that “it is well established that a federal agency does not have
the ability to amend or reject conditions in a [state’s] CWA 401
certification,” and that CWA § 401 “expressly grants States . . . the
right to add conditions to federally issued NPDES permits as
necessary to assure compliance with state water quality standards.”
EPA Response to Comments, at 14-11 to 14-12 (J.A. 1062-63). The
chief case upon which the petitioners rely, United States v. Locke, 529
19
The petitioners further contend that EPA’s failure to address
the commenters’ concerns was arbitrary in light of “the agency’s
own earlier, express acknowledgment that if such discharges
were subject to the NPDES permit program, ‘every vessel
engaged in interstate commerce would be required to apply for
and obtain a different, and potentially conflicting, NPDES
permit for each of the various State waters through which they
travel.’” Pet’rs Br. 39 (quoting EPA Decision on Petition for
Rulemaking to Repeal 40 C.F.R. 122.3(a), at 12 (Sept. 2, 2003)
(J.A. 179)). But EPA made that earlier acknowledgment in the
course of explaining its 2003 decision to deny a petition to
repeal the exemption for discharges incidental to the normal
operation of a vessel. EPA said it was denying the petition
because it thought -- just as it thinks now -- that “[t]here is no
provision under the CWA that would enable EPA to issue any
type of general permit to establish consistent, nationwide
standards for vessels in State waters.” EPA Decision on Petition
for Rulemaking to Repeal 40 C.F.R. 122.3(a), at 12. As we
discussed in Part I, the Ninth Circuit struck that exemption down
in 2008, and the petitioners do not challenge the Ninth Circuit’s
decision here.
2. Finally, the petitioners assert that EPA acted arbitrarily
and capriciously with respect to the analysis it conducted
pursuant to the Regulatory Flexibility Act, 5 U.S.C. § 601 et seq.
To conform with the requirements of that Act, EPA certified that
the VGP “is not likely to have a significant economic impact on
a substantial number of small entities.” 73 Fed. Reg at 79,481;
see 5 U.S.C. § 605. The petitioners contend that EPA’s
regulatory flexibility analysis was arbitrary and capricious in
U.S. 89 (2000), holds only that state laws may be preempted by
comprehensive federal maritime regulation. As EPA pointed out, the
restrictions that the petitioners challenge here are the consequence of
a federal law -- the CWA.
20
failing to consider the costs of complying with the state
conditions that the final VGP would impose.
It is true that EPA’s economic analysis did not consider the
costs of complying with state conditions. See EPA Br. 59-60
(articulating EPA’s understanding that it was not necessary to
consider those costs). But the petitioners did not object to that
omission below, notwithstanding that it was clear from the
analysis that accompanied the draft VGP that EPA did not plan
to consider such costs. Although some comments did urge that
“the Economic and Benefits Analysis upon which EPA relies
contains serious flaws,” the flaws enumerated in those
comments did not include the failure to consider the costs of
state certification conditions. Chamber of Shipping and
INTERTANKO Comments, at 36 (J.A. 687).12 Accordingly,
this objection is waived. See, e.g., Military Toxics Project v.
EPA, 146 F.3d 948, 956 (D.C. Cir. 1998).
IV
Because the petitioners have failed to establish that EPA
can alter or reject state certification conditions, the additional
agency procedures they demand would not have afforded them
the relief they seek. The petition for review is therefore
Denied.
12
See id. at 24-26 (J.A. 675-77) (articulating defects in EPA’s
analysis of the costs of particular EPA-imposed permit conditions, but
making no mention of state certification requirements); Lake Carriers’
Association Comments, at 5 (J.A. 713) (objecting to EPA’s
determination of the cost of compliance with the Best Management
Practices provision of the draft VGP, but not suggesting that EPA
must factor the costs of state certifications into the analysis).