[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S.C0URT0FAPPEALS
ELEVENTH QfRCOfT
No. 08-13652
OCT 26' 2012
Agency No. 40 CFR PART 122 JOHN LEY
CLERK
FRIENDS OF THE EVERGLADES,
Petitioner,
versus
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,
Respondent,
SOUTH FLORIDA WATER MANAGEMENT DISTRICT,
CAROLE WEHLE,
Intervenors.
No. 08-13653
Agency No. 40 CFR PART 122
MICCOSUKEE TRIBE OF INDIANS OF FLORIDA,
Petitioner,
versus
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,
Respondent
SOUTH FLORIDA WATER MANAGEMENT DISTRICT,
CAROL WEHLE,
Interveners.
No. 08-13657
Agency No. 40 CFR PART 122
FLORIDA WILDLIFE FEDERATION, INC.,
Petitioners,
versus
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,
Respondent,
SOUTH FLORIDA WATER MANAGEMENT DISTRICT,
CAROL WEHLE,
Intervenors.
No. 08-14921
Agency No. 40 CFR PART
SIERRA CLUB, INC.,
ENVIRONMENTAL CONFEDERATION OF SOUTHWEST FLORIDA,
Petitioners,
versus
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,
Respondent,
UNITED STATES SUGAR CORPORATION,
Intervenor.
No. 08-16283
Agency No. EPA-HQ-OW
STATES OF NEW YORK, CONNECTICUT, DELAWARE,
ILLINOIS, MAINE, MICHIGAN, MINNESOTA,
MISSOURI, WASHINGTON,
GOVERNMENT OF THE PROVINCE OF MANITOBA, CANADA,
Petitioners,
versus
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,
STEPHEN L. JOHNSON,
Respondents.
Petitions for Review of a Decision of the
Environmental Protection Agency
(October 26,2012)
Before BARKETT and PRYOR, Circuit Judges, and BATTEN,* DistrictJudge.
PRYOR, Circuit Judge:
In this matter, we must decide whether we have original subject matter
jurisdiction over several petitions for review of an administrative rule that exempts
transfers of waters of the United States from the requirements for a permit under
the Clean Water Act, 33 U.S.C. § 1251 et seq., or whether we may avoid deciding
that question and instead exercise hypothetical jurisdiction to decide the merits of
the petitions. Friends of the Everglades, several other environmental
organizations, nine states, the province of Manitoba, Canada, and the Miccosukee
Tribe argue that originaljurisdiction belongs in a district court, but they filed
protective petitions for review of the water-transfer rule in this and another circuit
"Honorable Timothy C. Batten, Sr., United States District Court for the Northern District of
Georgia, sitting by designation.
after the Administrator of the Environmental Protection Agency stated her position
that the initial judicial review of the rule could be had only in the circuit courts of
appeals. The Judicial Panel on Multidistrict Litigation consolidated the petitions in
this Court. The South Florida Water Management District and the United States
Sugar Corporation intervened to defend the rule alongside the Administrator.
United States Sugar urges us to exercise hypotheticaljurisdiction and deny the
petitions. But we hold that, under the plain language of the governing statute, id. §
1369(b)(1), we lack original subject matterjurisdiction to review the petitions and
we may not exercise hypothetical jurisdiction over them. We dismiss the petitions.
I. BACKGROUND
In 1972, Congress enacted the Clean Water Act "to restore and maintain the
chemical, physical, and biological integrity of the Nation's waters." Id § 1251(a).
As part of this effort, the Act prohibited "the discharge of any pollutant by any
person" except when permitted by law. Id. § 1311(a). The Act empowered the
Administrator of the Environmental Protection Agency to issue permits for
discharges of pollutants. Id§ 1342(a)(1). The Act granted broad authority to the
Administrator"to prepare or develop comprehensive programs for preventing,
reducing, or eliminating the pollution of the navigable waters." Id. § 1252(a). The
Act also granted the Administrator the authority to prescribe regulations to
administer the Act. Id § 1361(a). The Administrator interpreted this authority to
allow her to grant permanent exemptions from the requirements for a permit. See
40 C.F.R. § 122.3.
In 2002, the Friends of the Everglades and the Fishermen Against the
Destruction of the Environment sought an injunction to force the South Florida
Water Management District to obtain a permit to transfer water from the polluted
canals of the Everglades Agricultural Area into Lake Okeechobee. Friends of the
Everglades v. S. Fla. Water Memt. Dist.. 570 F.3d 1210, 1214(11th Cir. 2009).
The district court allowed several parties to intervene in the lawsuit, including the
Environmental Protection Agency, the Miccosukee Tribe, and the United States
Sugar Corporation. Id The environmental groups argued that the water transfer
introduced pollutants into the lake and was a discharge subject to the requirements
for a permit. Id at 1216. The Act defined "discharge" as "any addition of any
pollutant to navigable waters from any point source." Id. (quoting 33 U.S.C.
§ 1362(12)). The Water District argued that, when it transferred pollutants from
the canals to the lake, it did not alter the existing level of pollutants in United
States waters. Id. at 1217. For that reason, the Water District argued that its
activities did not fall within the definition of "discharge." Id
After a two-month bench trial, the district court enjoined the Water District
to apply for a permitfrom the Administrator. Id at 1214-15. The district court
interpreted the Clean Water Act to require a permitfor "water transfers between
distinct water bodies that result in the addition of a pollutant to the receiving
navigable water body." Friends of the Everglades v. S. Fla. Water Mgmt. Dist.
No. 02-80309,2006 WL 3635465, at *48 (S.D. Fla. Dec. 11, 2006), rev'd. 570
F.3d 1210 (11th Cir. 2009). The Water District appealed the judgment. 570 F.3d
at 1215.
Before the district court entered its injunction, the Administrator issued a
notice of proposed rulemaking to create an exemption for water transfers from the
permit requirements of the Act. National Pollutant Discharge Elimination System
(NPDES) Water Transfers Proposed Rule, 71 Fed. Reg. 32,887, 32,891 (proposed
June 7,2006). After receiving public comments, the Administrator issued a notice
of final rule. 73 Fed. Reg. 33,697,33,708 (June 13,2008) (codified at 40 C.F.R.
§ 122.3). The rule created a permanent exemption from the permit program for
pollutants discharged from water transfers:
The following discharges do not require . . . permits: . . .
(i) Discharges from a water transfer. Water transfer means an activity
that conveys or connects waters of the United States without
subjecting the transferred water to intervening industrial, municipal,
or commercial use. This exclusion does not apply to pollutants
introduced by the water transfer activity itself to the water being
transferred.
40 C.F.R. § 122.3(i). In the notice of final rule, the Administrator stated the
position that "judicial review of the Administrator's action c[ould] only be had by
filing a petition for review in the United States Court of Appeals within 120days
after the decision [wa]s considered issued for purposes ofjudicial review." 73 Fed.
Reg. at 33,697.
Litigation ensued in two district courts. Several environmental
organizations filed petitions to challenge the rule in the Southern District ofNew
York. Nine states and the province of Manitoba, Canada, filed a parallel suit in
that court, which consolidated the actions. The Miccosukee Tribe and several
other environmental organizations filed suit in the Southern District of Florida.
At the same time, the petitioners in those actions filed protective petitions
for review in the Second Circuit and in this Circuit. The Judicial Panel on
Multidistrict Litigation consolidated those petitions in this Court. See 28 U.S.C. §
2112(a)(3). We stayed the petitions during consideration of the appeal in Friends
of the Everglades v. South Florida Water Management District. The Southern
District of New York also stayed the actions in its court pending resolution of that
appeal and of the consolidated protective petitions. Catskill Mountains Chapter of
Trout Unlimited. Inc. v. EPA. 630 F. Supp. 2d 295, 308 (S.D.N.Y. 2009).
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In 2009, we reviewed the injunction issued by the district court in the light
of the Administrator's new water-transfer rule. Friends of the Everglades v. S. Fla.
Water Mgmt. Dist.. 570 F.3d at 1218. We explained that, even though "all of the
existing precedent" would have supported the decision of the district court, we had
to accord the newly issued water-transfer rule deference under Chevron. U.S.A..
Inc. v. Natural Resources Defense Council. Inc.. 467 U.S. 837,103 S. Ct. 2778
(1984). Friends of the Everglades v. S. Fla. Water Mgmt. Dist.. 570 F.3d at 1218,
1227-28. After applying the two-part test for Chevron deference, see 467 U.S. at
842-43,103 S. Ct. at 2781-82, we concluded that the water-transfer rule was a
reasonable interpretation of an ambiguous provision of the Clean Water Act and
reversed the decision of the district court, Friends of the Everglades v. S. Fla.
Water Mgmt. Dist.. 570 F.3d at 1228. When the mandate issued in that appeal, the
stay of these petitions expired.
II. STANDARD OF REVIEW
"[W]e determine our subject matter jurisdiction de novo." Alexis v. U.S.
Att'v Gen.. 431 F.3d 1291,1293 (11th Cir. 2005). "[T]he Court owes no
deference to an agency's interpretation of a statute that defines this Court's subject
matter jurisdiction." Sierra Club v. Leavitt. 355 F.Supp.2d 544, 548 (D.D.C. 2005)
(citing Fox Television Stations. Inc. v. FCC. 280 F.3d 1027, 1038-39 (D.C. Cir.
2002V): see Adams Fruit Co. v. Barrett. 494 U.S. 638, 650, 110 S. Ct. 1384,1391
(1990) (explaining that the delegation of power to an agency to administer a statute
does not empower that agency to "regulate the scope of the judicial power vested
by the statute").
in. DISCUSSION
"[T]he Courts of Appeals havejurisdiction for direct review only of those
[Agency] actions specifically enumerated in 33 U.S.C. § 1369(b)(1)," City of
Baton Rouge v. EPA. 620 F.2d 478,480 (5th Cir. 1980), and the Administrator
invokes the following two provisions of that section as providing jurisdiction over
this matter:
(1) Review of the Administrator's action . . . (E) in approving or
promulgating any effluent limitation or other limitation under section
1311, 1312, 1316, or 1345 of this title, (F) in issuing or denying any
permit under section 1342 of this title . . . may be had by any
interested person in the Circuit Court of Appeals of the United
States ...,
33 U.S.C. § 1369(b)(1). The Administrator argues that we have jurisdiction under
section 1369(b)(1)(E) because the water-transfer rule is "related to" a limitation on
movements of water and establishes limitations on permit issuers. The
Administrator also argues that we have jurisdiction under section 1369(b)(1)(F)
because the effect of a permanent exemption from the requirements of a permit is
"functionally similar" to the issuance of a permit.
10
United States Sugar urges us to exercise hypothetical jurisdiction over this
matter and deny the petitions on the merits. United States Sugar argues that a court
must satisfy itself of its jurisdiction before addressing the merits of a case only
when the issue involves jurisdiction under Article III of the Constitution. United
States Sugar also argues that, when the issue involves statutoryjurisdiction and the
decision on the merits is foreordained, we have the discretion to conserve judicial
resources and address the merits.
We divide our discussion in three parts. First, we explain why we lack
jurisdiction under section 1369(b)(1)(E). Second, we explain why we also lack
jurisdiction under section 1369(b)(1)(F). Third, we explain why we mustreject the
invitation of intervenor United States Sugar to exercise hypothetical jurisdiction.
A. We Lack Jurisdiction Under Section 1369(b)(1)(E).
Section 1369(b)(1)(E) grants original jurisdiction to the courts of appeals
over "any effluent limitation or other limitation under section 1311, 1312, 1316, or
1345 of this title." Id § 1369(b)(1)(E). "It is well established that when the
statute's language is plain, the sole function of the courts—at least where the
disposition required by the text is not absurd—is to enforce it according to its
terms." Lamie v. U.S. Tr.. 540 U.S. 526, 534, 124 S. Ct. 1023, 1030 (2004)
(internal quotation marks omitted). Because the water-transfer rule is neither an
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effluent limitation nor a limitation promulgated under section 1311, 1312,1316, or
1345, section 1369(b)(1)(E) cannot be the basis for our jurisdiction in this action.
The water-transfer rule is not an effluent limitation. The Act defines
"effluent limitation" as "any restriction established by a State or the Administrator
on quantities, rates, and concentrations of chemical, physical, biological, and other
constituents which are discharged from point sources into navigable waters, the
waters of the contiguous zone, or the ocean, including schedules of compliance."
33 U.S.C. § 1362(11). Not only does the water-transfer rule not restrict pollutants,
it explicitly allows entities to introduce pollutants into navigable bodies of water.
See 40 C.F.R. §122.3.
The water-transfer rule is also not a "limitation under section 1311,1312,
1316, or 1345." Black's Law Dictionary defines a "limitation" as a "restriction."
Black's Law Dictionary 1012 (9th ed. 2009). The water-transfer rule imposes no
restrictions on entities engaged in water transfers. The effect is the opposite: the
rule exempts governments and private parties engaged in water transfers from the
procedural and substantive requirements of the Administrator's permit program.
And even if the water-transfer rule could be classified as a limitation, it was
not promulgated under section 1311,1312,1316, or 1345. According to the notice
of final rule, the Administrator promulgated the rule under sections 1342 and 1361.
12
73 Fed. Reg. at 33,698. The Administrator now argues that the water-transfer rule
was promulgated under section 1311 because section 1311 refers to section 1342,
but nothing in the text of section 1311 grants authority to the Administrator to
exempt activities from the permitprogram. See 33 U.S.C. § 1311. Section 1311
instead grants the Administrator authority to issue and terminate permits. Id.
The analysis of the Ninth Circuit in Northwest Environmental Advocates v.
EPA. 537 F.3d 1006 (9th Cir. 2008), is instructive. In an appeal from a district
court, the Ninth Circuit was asked to review a different, but analogous, exemption
from the permit program. Id. at 1010. Although the district court had exercised
federal question jurisdiction, 28 U.S.C. § 1331, the Ninth Circuit considered
whether the matter should have been brought directly to the court of appeals under
section 1369(b)(1). Nw. Envtl. Advocates. 537 F.3d at 1015. The Ninth Circuit
held that section 1369(b)(1)(E) did not permit it to exercise original subject matter
jurisdiction because the challenged provision "providefd] no limitation
whatsoever... but rather createfd] the categorical and permanent exemptions of
three types of discharge from any limit imposed by a permitting requirement." Id.
at 1016.
The Administrator argues that we have jurisdiction because the water-
transfer rule places limitations on permit issuers, and the Administrator relies on
13
Natural Resources Defense Council. Inc. v. EPA, 673 F.2d 400 (D.C. Cir. 1982),
for the proposition that such limitations fall within section 1369(b)(1)(E). In that
case, the D.C. Circuit held that it had original subjectmatterjurisdiction under
section 1369(b)(1)(E) to reviewthe consolidated permit regulations of 1979. Id. at
401-02. The D.C. Circuit explained that the consolidated permit regulations were
"a limitation on pointsources and permit issuers," much like regulations that the
Fourth Circuit had previously held to support original jurisdiction under section
1369(b)(1)(E). Id at 405 (quoting Va. Elec. & Power Co. v. Costle. 566F.2d 446,
450 (4th Cir. 1977)). But the Fourth Circuit and the D.C. Circuit both emphasized
that the limitations on permit issuers in those regulations operated as "restriction[s]
on the untrammeled discretion of the industry." See id. at 404-05 (quoting Va.
Elec. 556 F.2d at 450).
We reject the Administrator's reading of section 1369(b)(1)(E). The water-
transfer rule does the exact opposite of the regulations reviewed by the D.C. and
Fourth Circuits. The rule frees the industry from the constraints of the permit
process and allows the discharge of pollutants from water transfers. Section
1369(b)(1)(E) cannot be read to grant us original subject matter jurisdiction over
this matter.
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B. We Lack Jurisdiction Under Section 1369(b)(1)(F).
The arguments advanced by the Administrator for jurisdictionunder section
1369(b)(1)(F) fare no better. Section 1369(b)(1)(F) grants original subject matter
jurisdiction overa petition to review an action "issuing or denying any permit
under section 1342." 33 U.S.C. 1369(b)(1)(F). The water-transfer rule neither
issues nor denies a permit. The rule instead exempts a category of activities from
the requirements of a permitand ensures that no permit will ever be issued or
denied for discharge from a water transfer. See 40 C.F.R. § 122.3(i).
The Supreme Court has interpreted section 1369(b)(1)(F) to extend
jurisdiction to those actions that have "the precise effect" of an action to issue or
deny a permit, Crown Simpson Pulp Co. v. Costle. 445 U.S. 193, 196, 100 S. Ct.
1093,1095 (1980), but the water-transfer rule has no such effect. In Crown
Simpson, the Administrator had denied several variances from effluent limitations
that had been approved by the California State Water Resources Control Board.
Id. at 195, 100 S. Ct. at 1094. Because California administered its own permit
program, the Administrator had vetoed a proposed state permit, not denied a
federal permit. Id. The Supreme Court was unwilling to create a bifurcated
system for review that depended on whether a state administered the permit
program, and the Court held that, when the action of the Administrator is
15
functionally similar to the denial or issuance of a permit, the courts of appeals have
original subject matter jurisdiction under section 1369(b)(1)(F). Id at 196,100 S.
Ct. at 1094. But a permanent exemption is meaningfully different from the action
that the Supreme Court held in Crown Simpson to be functionally similar to the
denial of a permit. The exemption is a general rule, as opposed to a decision about
the activities of a specific entity, and a permanent exemption from the permit
program frees the discharging entities from further monitoring, compliance, or
renewal procedures.
The Administrator argues that we should read section 1369(b)(1)(F) to apply
to any "regulations relating to permitting itself," but this interpretation is contrary
to the statutory text and was persuasively rejected in Northwest Environmental
Advocates. The Ninth Circuit held that it did not have jurisdiction under section
1369(b)(1)(F) to review a regulation creatingnew exemptions from the permit
program. Nw. Envtl. Advocates. 537 F.3d at 1018. The Ninth Circuit explained
that a new exemption will never produce a permit decision to be reviewed under
section 1369(b)(1)(F) before the court of appeals is able to review the underlying
regulation, so there is no reason to read the section as providing original subject
matterjurisdiction to review the exemption. Id Although the Sixth Circuit later
adoptedthe interpretation advanced by the Administrator, Nat'l Cotton Council of
16
Am. v. EPA. 553 F.3d 927, 933 (6th Cir. 2009), it did so in an opinion that
provided no analysis of the provision and that cited two decisions of the Ninth
Circuit that the Ninth Circuit had distinguished in Northwest Environmental
Advocates, see id. We lack original jurisdiction to review a permanent exemption
from the permit program.
C. We Cannot Exercise Hypothetical Jurisdiction.
The argument of United States Sugar that we may exercise hypothetical
jurisdiction fails. Even if the resolution ofthe merits were foreordained—an issue
we do not decide—the Supreme Court has explicitly rejected the theory of
"hypothetical jurisdiction." In Steel Co. v. Citizens for a BetterEnvironment. 523
U.S. 83,101-02,118 S. Ct. 1003, 1016 (1997), the Court reaffirmed that an
inferior court must have both statutory and constitutional jurisdiction before it may
decide a case on the merits:
Hypothetical jurisdiction produces nothing more than a hypothetical
judgment—which comes to the same thing as an advisory opinion,
disapproved by this Court from the beginning. Much more than legal
niceties are at stake here. The statutory and (especially) constitutional
elements of jurisdiction are an essential ingredient of separation and
equilibration of powers, restraining the courts from acting at certain
times, and even restraining them from acting permanently regarding
certain subjects. For a court to pronounce upon the meaning or the
constitutionality of a state or federal law when it has no jurisdiction to
do so is, by very definition, for a court to act ultra vires.
17
Id. The Court recognized one exception to this requirement: when there is
substantial overlap between interpreting a statute to resolve the merits of a case and
determining an issue of statutory standing, a federal court has the power to decide
whether a statute creates a cause of action before deciding whether the plaintiff has
statutory standing to sue. Id at 97 n.2, 118 S. Ct. at 1013 n.2. But here the
statutory issue involves subject matter jurisdiction, not standing, and that issue is
distinct from the merits.
We cannot exercise hypothetical jurisdiction any more than we can issue a
hypothetical judgment. "Federal courts are courts of limitedjurisdiction. They
possess only that power authorized by Constitution and statute, which is not to be
expanded byjudicial decree." Kokkonen v. Guardian Life Ins. Co. of Am.. 511
U.S. 375,377,114 S. Ct. 1673, 1675 (1994) (internal citations omitted). Because
we conclude that section 1369(b)(1) does not grant original subject matter
jurisdiction over these petitions, we may not address the merits of this controversy.
IV. CONCLUSION
We DISMISS the petitions for review for lack of subject matter jurisdiction.
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