we'll hear argument first this morning kay sixteen to ninety nine the national association of manufacturers versus the department of defense at all mr bishop mr chief justice and my please the court the clean water act provides for judicial review in the courts of appeals of seven categories of action by the e p a administrator and those are defined narrowly and precisely in section thirteen sixty nine be one of the act a congress meant for court appeals to review all national law definitional rule it would have said so as it did in the clean air act instead of listing a handful of particular e p a actions down to the statutory subsection out textural approach the  to the world is ruled by itself one of the things putting us i mean obviously your main emphasis is of course on the statutory language but one of the consequences that your opponent points out is that if you're correct in these actions are brought in the district court each of the district courts will have to review the entire administrative record and presumably you could have dozens of the district courts engaged in that same activity and then it would have has its own efficiency problem which is that it's not clear and what you end up with under a rule that isn't clear is extremely inefficient and you know here we have this rule was promulgated in june of two thousand and litigate these issues in the district court because we think that going through the district courts in the courts of appeals will produce more accurate decisionmaking in what he the case of better for this court i take it that means they're right that that's would that's what this would in to what i can use a district court to do to correct job would have to look at the whole record and as many district courts as these actions have been brought would have to do that and then the court of appeals would do it again that's true and this has been followed in eleven district courts i would say as a practical matter what happens in these cases once the initial skirmishing is over is that part is on different sides tend to this needs to go to district court why would parties run into the courthouse they would either wait for an foresman proceeding or wait for a denial of a permit or just wait and the waiting would then result in the inefficiencies that the chief justice just pointed to even worse because we would have a rule being constantly challenged and never truly finalised  those are reviewed in the court of appeals if you did not do that with thirteen forty four feel permits so congress itself had no problem whatsoever with the idea that permits could be challenged in different courts its decisions litigated in the district court litigated in the district court when the rule is challenged under our approach here but they're also litigated in the district court  practical matter nobody challenges a wouldst determination in a thirteen forty two permit proceeding no one is ever going to go through the incredible expense of that permit without first having determined with the agent or through one of these more formal proceedings like a j d n at issue in whole which was reviewed the j d as you say in all his reviewed in the district no one is going to do that unless they know where they have worked with mr bishop could step back just for a bit i mean i understand that your basic argument is the less it is the less than what's on the list controls but if i said to you what was congress theory behind the list do you think congress had one to be honest i do not i cannot explain that and i have never heard anyone explain that to me i mean if you look at if you look at the list  b b one b references a provision that was never an active that doesn't exist a puts into the courts of appeals promulgation of any standard of performance under section thirteen look you should just resign yourself to thinking of that as having no particular rationale congress said what it said nobody can figure out what the reasons are that congress included those things and not other things it's all putting and that's just what it is and i think when you have that sort of is that is that i guess the idea that i think you you know if someone can come up with an explanation of this that makes sense i'm very happy to hear it i have yet to hear one solution and that's why you these are not careful provisions i mean i'll give you that but the opera site's ok they can be applied they are precise down to the last subsection in many cases and so who part of the statutory language you have a restore the property now the government says enforcement all of this don't promulgated limitations within subsection the but if if an order like that that says this is a war of the united states do not discharge to it please restore it if that's not a limitation and easy how can a generalized definition of possibly be such a limitation i think that there are other you know there are other more complex i think that's an easy one there are other more complex ways in which the government i mean the government's reading essentially is because of the breadth of thirteen eleven and the government's really reading it is basically that anything that affects affluent limitations under the limitation what would otherwise give me concrete examples of what would be an other limitation so that the two for terms are not redundant other limitations means the non affluent limitations in the provision it is directed to promulgate alternative effluent control strategy is needed to meet water quality standards letting sixteen is all about new source performance standards and they're among the various things that the e p a is told that it should do you can up with operating methods for the source operating methods for the source to meet the standards and then on the thirteen forty five which is the sewage sludge  concentrations of pollutants but you can you can just set those numbers but something else that you can do is you can say well what comes first before this pollutant comes out of the pipe what can we do to precise non affluent limitation actions that congress directed e p a to take to reduce effluents and you don't need to go beyond those fo those four provisions qualify the reference to other limitations and what you don't do is look at thirteen eleven a which is the overarching foundational provision  where if that is what defines what goes to the court of appeals and he you basically have everything everything comes in and let me just give one more example i gave the example sec it but  it's you know thirteen thirteen are is there water quality provision t m deals it tells it drives effluent limitations you set the water quality for a segment of water and once you set that it drives the effluent limitations that can be granted for a point source it's there then it is inconceivable that doesn't fall under the government's view of things that affect ethical limitations but the government has twice persuaded courts of appeals that thirteen thirteen lies outside easy using textu what the government's position does is to make a horrible mess of the statute and that mess can only be fixed in one way and that's by looking at the precise language that is spelled out in the one and in an effort if i can smooth i think it's just too early to say when or if it will be rescinded justice ginsburg the comments came in on september twenty seventh that with thousands of them we don't know what the timetable is we don't know what the government the my course of my time thank you coun mr murphy mr chief justice and may i please the court i'd like to begin with justice kagan is question about the overarching theory i think there is a theory that explains both subsection and the entire statute and that there is congress went through and looked at the specific allegations of authority and the statutes and each of these provisions that is listed here in the southern sections congress direct e p a to do a specific type of activity subsection a standard performance that's one provision and thirteen sixteen it tells e p a promulgated standards and that's true for each one of these including subsection e and i think that gives meaning to what a fluid limitation or other than  because words are known by the company the keep of limitation or other limitation under the four listed sections it seems to me it's talking about the types of them attention that those four sections specifically tell e gauging rulemaking go do these types of activities and each one of those is a distinct type of activity in the in the government's brief they ask they say well what if we had just done it the following way we you know issued a rule saying don't discharge you can't discharge more than a certain amount of a certain pollutant in these following waters and just list the waters in the rule that says how much of the pollutant you can't discharge and they say under your rule that would come out differently but it shouldn't come out different i think it would end this sense nothing and subsection or excuse me nothing in section thirteen one directs them to do that that would be the agency's action acting under their general rule making authority which would be in section thirteen sixty one that's book catch all it says the agencies you can issue rules to and from and yet that's exactly what the word is rule is designed to accomplish it's under that authority nothing in section thirteen eleven either t type of action or the waters rule here so let me make sure i understand that rule if the and somebody challenged that rule where would it go that would i so i see in the it was a hypothetical to the district court i think and but the common theme of all four of these provisions i think is the tells the e p a to undertake specific types of actions thirteen eleven the technology based limitations for existing sources thirteen twelve switches two water quality based standards thirteen sixteen new source standards and thirteen forty forty five sewage sludge so i think that there's precise language directing e p a to engage in activity but there nothing in the statute that you can find that in any of these four that says e p a please promulgated a definition of waters of the united states do you think that the e p a has the power to issue a rule that justice kagan described very may not have the power if the if the power exists however i do not think it would be a power under thirteen eleven i think with the power would flow from thirteen sixty one which is the general authority to  with wisdom to having things percolate up with a more review there's a greater chance of having a correct result and i think this there's a national rule of everybody would agree it's very important everybody would agree that it's important to get things right and i also that the rhyme or reason i came up with this if you look at the seven actions each of the sections that is listed promulgated a standard of performance under section three of sex attacks toxic after one standard under thirteen seventeen mak determination with respect to state permit program these are all specific allegations of authority to the agency to engage in the specific types of actions that are listed do you think general i mean does you interpretation depend very much on a specific understanding of the word under another would you are reading this to say something like under the specific authority of section thirteen eleven thirteen twelve but under is a kind of nebulous word doesn't say under the specific authority here just says under you might read under a little bit differently you might read under to say something like limitations regulating actions taken under section thirteen eleven thirteen twelve etc so why should we read under your way rather than and some other way yes because i think you under is absolutely the courts have said it's a communion but i think that when you look at it in the entire phrase promulgate approved in the floor in the material or under limitation under these things i think that our position relies on the entire phrase and when you say promulgated limitation under that means that you're acting a regulation that is a restriction and it's under these provisions i just imitation regulating actions taken under thirteen eleven thirteen twelve if you did it that way it would come out the government's well i'm not certain that it would because this still would not qualify as a limitation it seems to me i think they're on their approach would have to be affecting a limitation that exists with because that's what this century with they're arguing that by the finding of the waters of the united states their treatment triggering a ban on discharges and thirteen eleven a day and that's sufficient but the statute says promulgated a limitation when you when you hear the phrase promulgated a limitation the thing being promulgated itself must be the strict restrictions but they don't rely yes put it on the other hand you yourself treat this rule as very much limiting your activities it is a limitation on activities it's combined with another limitation to  you can't discharge pollutants where you want to discharge pollutants but it's very much part and parcel of the limitation that you are objecting to so i think the limitation is thirteen zero but i think that's why they have to always change the verb from probably to impose or most cases whether something has a practical effect of triggering a limitation under thirteen eleven and so i think if you're if you're in the hertz world we're thinking of what's the clear rule i think we provide a clear rule it's going to be easily administer or in the range given the unfairness that could arise and the court should keep in mind that every one of the court cases that it has considered the waters of the united states rule those are cases that have arisen in force in the proceedings or other type of district court review all those under the government's approach could now not be allowed if the government's approach is allowed because of circuit review exists then the b two provision kicks and it says that you cannot have review and major criminal or civil unfortunate  stitch efficiency of agency action should trump all and so i think that fairness concern equally applies here i also think that there are due process concerns as well thank you thank you counsel know order for a person to know what they are prohibited from doing under section thirteen eleven they need to know both numerical constraints that apply under that provision and geographical constraints under that section a broad definition of waters of the united states imposes border limitations under section thirteen eleven and a narrower definition imposes narrower limitations under section thirteen eleven indeed the challengers are here today challenging the rule precisely because it's going to impose border restrictions on their conduct under section thirty eleven and any doubt about whether geographical limitations like this ought to be treated as limitations under section thirteen eleven and subject to circuit court review is resolved by this court the geographic aspects of limitations under section thirteen eleven from the numerical aspects indeed i think it's some of the questioning points out this is the equivalent of a rule that does those two things together that simply says a person shall not  in the following locations discharge pollutants without a permit is there anything in the definitional section that will modify indirectly of tax something that is listed in thirteen six you know and b and if that's the case why in congress just include the definitional section in the list of covered actions well i think the key here is that there are sections thirteen eleven there are actually only a handful of critical terms and we're defining one of those critical terms so it's not our submission that any term that was defined throughout the statute is going to fact limitations under section thirteen eleven but here where you are defining in effect discharge of a pollutant which is defined as discharge of what is united states you are expanding or contracting the school of the prohibition under section thirteen eleven and that's why it's the equivalent of a rule that says on the following waters you shall not dischargeable under section thirteen eleven that would certainly be a limitation that's promulgated under section thirteen eleven and it's exactly what's happened here so your position is that interpreted in a definitional phrase is necessarily a limitation i think it's in is that a correct way to characterize your argument or not not correct and i think i might characterize it a different way i think we have a clear rule that strive for just what is a limitation and we think a limitation in the dictionary definition is a restriction so the rule has to impose a restriction under section thirteen eleven that this rule does that it is the equivalent of a rule saying you shall not discharge pollutants into the following locations except in compliance with the terms of section thirteen eleven so i mean there has been a lot of talk of clear jurisdictional rules on the other side i think our rules very clear it's just doesn't impose a limitation under section thirteen eleven i took our friend you know petitioner to get up and say essentially he agrees with that you look to is it a limitation and then you look to is it a limitation that arises under one of the the the campus and the rules kind of tell you what what that means i think they are the equivalent they're doing exactly the same thing here you could phrase it as it's a definition that tells you where the limitations apply where you could phrase it is just part of limitation is it's a limitation that applies only in certain places and if you look to this court's cases in dupont and crunch and i think they tell you two things first you look to whether a functionally similar rule would have states growing up that permit it denied those permits that's right and i think what one the reasoning that the court uses is it says is this functionally similar to a rule that would go to the court appeals and here this is functionally similar to a rule th said for instance you shall not discharge more than a thousand parts per million of a certain pollutant into the following waters that would be a classic effluent limitation that would go to the court of appeals and i'm not sure i'm asking what goes to the district court so things that go to the district floor include decisions on one particular type of permit phil permits your honour's opinion in our d c list a number of additional actions that go you know things that aren't are these waters the united states if you are if you're a farmer somewhere and you don't think these are waters of united states are you going to just of course they're going to tell you well sorry you're out of luck because you didn't challenge this in within one hundred twenty days of the problem  i think so i think if you were challenging where their particular land was the water of the united states you could go to the district court and get a jurisdictional determination applying to the particular facts of your case you know but if you think that's the definition is it is what you want to challenge not whether the definition applies to your land it's just like your honor if that farmer wanted to challenge the numerical constraints that applied they ought to go to the court of appeals to challenge the numerical constraints nor do you think there's the separate question that the other side raises i was of what if there is a force mint action and you want to contest as a defense an enforcement action the definition of order to the united states i think what harrison indicates interpreted exactly the same  scheme in the clean air act is there maybe if there is any due process issue if that farmer needs to have a venue to challenge the rule as a defense that's a that's an issue when a force majeure of b b two it's an issue with the enforcement of the bar to well i don't know what you mean our nation is that mean he can challenge it in an enforcement action it means that if there's any due process problem the appropriate way to address that is by a narrow interpretation of be to that permit what else we need to know to tell me whether there's a due process problem or not he thinks the definition is not appropriate under under the statute there you're enforcing it against him does he get to challenge it or not so he's not a lobbyist he's a farmer in kansas and all of a sudden you come in and you're telling him that he can't that somebody needs to be able to bring a challenge when there's an important action if there is your honor it's not a limiting the definition of f one limitation is not going to solve that problem because there are inevitably some limitations that are going to be covered by b one so if there is a d process limitation the way to address that has to be to say whatever those limitations are that are covered by b well if you want to say whether a person in that situation would be able to challenge it and coming provided in a permit in proceeding then i take your answer to  be that the position of the united states is that the person cannot challenge that's the position you would take in that situation i'm not sure your honor i don't think we have taken a position on that because the court has reserved it i think the case is the court will look to our cases like  and i think it might depend on the position of i don't understand how you can make the argument that you're making today without knowing what the what your answer is to that question i think you want to answer that question i think the reason your honor is that i think what the court h expression said about it is that to the extent there's a due process problem the appropriate way to address that the court said in nov ninth of harrison is by narrowing the definition of b to by narrowing the preclusion provision and that's what the court would have to do because any established by the administrator when wanted to ease rates in concentration well once you have that in mind it's hard to agree with you because it looks as if given the fact that we have a d and then he would refer to those four sections it would seem to do two things  you know you don't like you want to issue a permit and they won't do you go ahead you can go to the court of appeals a little unusual since it's fact based but nonetheless and then the other poor that i just mentioned seem to say if there are standards which are like rules and they're related to the specific definition i told you about or the equivalent because the standards of performance after all is a different set of words then effluent limitations but the over limitations doing they are because you don't need them indeed your view which makes sense because maybe all rules should be reviewed in a court of appeals but that isn't what it says and i am see rather stuck with that and you say well why did congress do it the reason they did it is because they were worried about getting bru view of affluent limitations or the equivalent as defined up there in a court of appeals fast and as to the rest of it the rest of what the e p a does they didn't care or at least they didn't care here or at least the hearings weren't about that or at least the members of congress weren't thinking about that that's why they're left out right now that's that's how i read it and what is it that you want to say that will disabuse me of that really sure so let me give you first detection response and then a response that goes to what congress indicated it was thinking  i mean it says effluent or other i know that other means the same roughly speaking as effluent limitations but we're in respect to those things that aren't strictly labeled absolutely and so i think i guess i would have two responses to that you first is that's not how this court has interpreted parallel language in the clean air act so in harrison your honor the court looks at a statute that to the same the same kind of list a bunch of and other numerated actions and then a any other action of the administrator closely related closely connected limitations label this is the first one in line because this is the limitation that tells you exactly where the f limitations apply it is closely connected as you can get so many times you go to what congress which was indicated he was thinking i think if certainly doesn't sound like a big catch all it sounds like a little catch all so if that screw your reading go why did they bother writing this all the stuff because after all they would be up there in the court of appeals anyway under what you see as a cattle well i think your honor if you if your honor is inclined to give it a narrow reading we would say just apply the principles that this court has applied in other cases to construe how big that exception is what it's called and what the court is judge is avoiding the of national school go to the court of appeals that's what's missing here your honor we agree that this provision is narrower than the clean air act provision and that there are many rules that are going to be promulgated that don't go to the court appeal so we're not reading this as though it's not in any other action of the administrator like the clean air act but we do think it says effluent or any other limitations under section thirteen eleven so if it's imposing a limitation under section thirteen eleven that's all we're saying is what  limitation you need to know in order to know where the effluent limitations apply it's as closely connected as you can get mistaken for a moment that your view of any other limitation is right that it's quite a broad phrase general murphy as i understood it him make made a point that said well still i mean there's this under these following sections and suppose he's right but in the context of this whole provision which starts out about promulgating limitations that under is best taken to me and under the specific authority of so do you have any argument that this  was promulgated under the authority of section eleven or was it pretty clearly promulgated under the authority of section thirteen sixty one we think it's promulgated under both when every p a promulgated a rule interpreting the statute it's implying it's applying in part the general rule making authority provision that mr murphy alludes to but it's also here relying on the ambiguity that exists it's just you know that is that a statutory term is ambiguous indicates that congress was delegating to the agency some authority to resolve ambiguities in the statute here it's relying on thirteen eleven which contains these terms that the p a has the authority to define under the statute now in your own brief in responding to some other argument and a put note you say this authorized the administrator to issue the clean water rule and then you have a citation and it gives thirteen sixty one as the authority for that and that seems you know pretty right to make that you were relying on general rule making that already rather than relying on the provision that talked about specific affluent restriction just to be clear your honor section for everything that we do under section thirteen eleven every kind of ruling on our section thirteen sixty one we're making authority to say we're the the entity that gets to define what the limitations are going to be we're relying on our general making authority to give content to definitions of the statute you know indicated are going to be defined terms and are go limitations for example you know other places in thirteen sixty one they talk about best pollution control technology as defined by the administrator i think if we defined best pollution control technology more stringently it's pretty clearly going to be imposing an additional limitation concentrations of constituents which are discharged now how is a geographical regulation a geographical limitation or expansion how is that related to why that doesn't sound like a restriction on quantity use rate and concentrations of this georgia's sure it's a limitation that's very closely bound up with quantities and rates because you need to know the of the united states i think my friend on the other side's description of the state of affairs is correct in that we've completed the notice and comment receiving phase and the agency is now evaluating that those  received and it is possible that the agency will after that decide as opposed to do decide to rescind the existing rule i do think it points up your honor the sort of practical implications here i mean for example the agency received about five hundred thousand comments about the new proposed rule it received i think about twice as many comments it's similar three hundred fifty thousand page administrative record about the old rule that says just realistically is the cost of this case would be moot at this or is this process one that innately will take longer than this term i don't know the answer to that question when when when it became a possibility that the rule would be rescinded we advised the court and suggested it might want to consider well in the case in abeyance to see what happens but the court elected yes under a new so i think if i tend to agree that if the court rescinded the rule that is at issue here this case would become moot but the issue would arise again in the context of the new world of the united states rule and you know i think what you would have to clear rule yes and if that's the thumb on the scale i thought you had a pretty interesting argument that you know we'd go to the courts of appeals and not be more efficient until you your interaction with the chief justice and justice alito where you you indicated you wouldn't necessarily foreclose district court actions either so were does that leave us in terms of a clear rule yeah i think the court has indicated clear rules are important we think we have the clear rule here you just look to all but you wouldn't you wouldn't you wouldn't stand by that have many many people who want to challenge the rule here you had fifteen people you know fifteen parties walk in and the question is are those challenges going to be routed to a single court of appeals that can quickly resolve you know this issue and is or are they going to be considered  says i don't i shouldn't fit under this rule because this really can't be navigable waters what happens then does the court say well that was when he gave it or should have been litigated before so we're just not going to pay attention to this challenge so i think then the question would be not withstanding whatever this court has said about be one is there be to due process exception that question is going to be a live question no matter what this court decides about the scope of the one because there are always going to be challenges to what every enforcement action we're going to be having district courts decide this question anyway no actually no i think the next question the court will need to address and it will need to address no matter what it decides in this case about the scope of one limitations is is there a due process requirement that in the unfortunate proceeding somebody be able to challenge something that you know was promulgated through a rule it's going to rise on either sides on either side's view of what the scope of should be construed not simply to sort of reach decisions that issue or deny a comment but also decisions that are so closely related that it would be irrational divide them up and so they i think it goes to the point that justice ginsburg made and what this court said in dupont which is if the individual if this decision when in the context of an individual proceeding would go to the court of appeals and you know here in the context of an individual permanent decision what does the united states decision go to the appeals it has a lot of relevance under because this is the equivalent of a rule that says you cannot the storage on the following locations if that goes to the court of appeals has been a rule that just specify the geographic piece should also go to the court of appeal and your honor i do think it's worth highlighting that the approach they were proposing of avoiding irrational bifurcation is an approach this court set out about forty years ago since then the course the appeals have been applying it they have a construction of limitation they've been looking to you know does this restrain industry and they've been applying this should or does this bifurcate decisions that are closely related analysis they've been doing that for forty years in that time congress has amended this provision but they haven't expressed any  so something about our rule is not clear you or i think china will be right we do to make it clear how do we explain this to the courts below so that they have a clear idea of what it is that's in  what's out yes i think the clear rule your honor is to say if a rule imposes limitations under section thirteen eleven then it goes to the courts of appeals and i think if the court that has to that the rule had restricted the class of waters of the united states would that still count as a limitation under your view it would your honor because we don't think the right baseline is what was the preexisting rule we think you look at the rule by itself the easiest way to see that i think is an analogy to numerical limits so if the rules initially you can only destroy our sixteen thousand parts per million of a chemical and the rules change so now it's you can just charge eighteen thousand it's a more lenient limitation but you'd still say that's an excellent limitation that goes to the courts of appeal there now for the questions thank you counsel two minutes mr bishop bishop so the government's just conceded that it's been pushing this functional argument functional effects argument for the last forty years which is true some courts of excepted that no will have by any means but the result is being that for forty years people been filing duplicative actions and then litigating about whether litigate this is the third case i've had like this my clients have had dozens of cases where they've spent millions of dollars lity about where to litigate the answer to this is to look at the clear language of the statute which is the only way to get a a a bright line rule here and just a part of that is the word under justice kagan and  i think when you look at the although this is a chameleon when you look at the cases to clear meanings for under that come out of one is authorized by as you mention this is not authorized by as a footnote the you indicated in the government's brief concedes it's authorized by thirteen sixty one not by thirteen eleven another meaning is specified in and that meaning is important here because the because the second clause in  specifies limitations under these four provisions and those four provisions is just a rhino did list both effluent limitations and other types of limitations that cut back on what comes out of the pipe but  not themselves effluent limitations that is a perfectly clear meaning of e but does not reach a broad geographical definition of this type thank you thank you council cases submitted