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Hannah Connor (Florida Bar No. 125378)

Admitted Pro Hac Vice

CENTER FOR BIOLOGICAL DIVERSITY

P.O. Box 2155 

St. Petersburg, FL 33731

Phone: (202) 681-1676 

Email: hconnor@biologicaldiversity.org

Counsel for Plaintiff Center for Biological Diversity

Additional Counsel Listed in Signature Block

UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

TUCSON DIVISION

Center for Biological Diversity, 

Plaintiff,

v.

E. Scott Pruitt, in his official capacity as 

Administrator of the U.S. Environmental 

Protection Agency, et al.,

Defendants.

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Case No: 4:18-cv-00050-TUC-JAS

PLAINTIFF’S RESPONSE IN

OPPOSITION TO DEFENDANTS’

MOTION TO DISMISS FOR LACK

OF JURISDICTION

On September 18, 2017, the U.S. Environmental Protection Agency (EPA or 

Agency) published a final rule delaying compliance with final and effective pollution 

discharge limitations established under the Clean Water Act, 33 U.S.C. § 1251 et seq., in 

2015 for steam electric power generating facilities – a category that includes coal, oil, 

natural gas, and nuclear power plants. 82 Fed. Reg. 43,494 (Sept. 18, 2017). That action, 

largely the result of an administrative citizen petition filed by the Utility Water Act 

Group (UWAG) pursuant to the Administrative Procedure Act (APA), 5 U.S.C. § 701 et 

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seq., does not approve or promulgate any effluent limitation or other limitation, and does 

not change or otherwise amend the effluent limitations and guidelines established by the 

Agency in 2015. 82 Fed. Reg. at 43,494-95. Instead, it disregards the objectives of the 

Clean Water Act and allows entities to continue discharging toxic pollutants into 

waterways by delaying compliance with already final and lawfully executed effluent 

limitations.

Plaintiff Center for Biological Diversity (Center) challenges the September 2017 

delay rule (Delay Rule) under the Endangered Species Act (ESA), 16 U.S.C. § 1531 et 

seq., and National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq., to 

enforce EPA’s ongoing obligations under these laws, and to support Congress’ 

fundamental commitment to protecting imperiled wildlife, vital aquatic habitat, and 

public health. EPA has now moved to dismiss the Center’s case for lack of subject matter 

jurisdiction, relying on Section 509(b)(1)(E) of the Clean Water Act, 33 U.S.C. § 

1369(b)(1)(E), as support for its motion (ECF 11). There is no merit to this argument. 

Section 509(b)(1) of the Clean Water Act enumerates seven narrow categories of 

agency actions that a plaintiff must challenge directly in the court of appeals, rather than 

in district court. One of the categories is “[r]eview of the [EPA] Administrator’s 

action . . . in approving or promulgating any effluent limitation or other limitation.” 33 

U.S.C. § 1369(b)(1)(E). As this category makes clear, for it to apply the Agency must 

expressly approve or promulgate an effluent limitation or other limitation, something 

that, by its own description, EPA has not done here. See, e.g., 82 Fed. Reg. at 43,494-95 

(“EPA’s action [is] to postpone certain compliance dates in the 2015 Rule . . . and . . .

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does not otherwise amend the effluent limitations guidelines and standards for the steam 

electric power generating point source category.”); id. at 43,499 (“This rule . . . postpones 

certain requirements on steam electric power plants to control their pollutant discharges 

by two years, and as a result, it relieves a restriction on regulated entities for that 

period.”) Indeed, EPA’s act of delaying compliance deadlines with the 2015 effluent 

limitations yields the opposite result because it “relieves a restriction on regulated 

entities,” id. at 43,499 (emphasis added), rather than establishes “any restriction . . . on 

quantities, rates, and concentrations” of pollutants from point sources into navigable 

waters. 33 U.S.C. § 1362(11) (definition of effluent limitation) (emphasis added). 

As the Supreme Court and courts in the Ninth Circuit have repeatedly recognized, 

“[t]he specificity and precision of [Section 509], and the sense of it, persuade us that it is 

designated to exclude” EPA actions that Congress did not specify. Longview Fibre Co. v. 

Rasmussen, 980 F.2d 1307, 1313 (9th Cir. 1992). As a result, courts should deny attempts 

by EPA to “broaden . . . [the] narrow language” of Section 509(b)(1). Nat’l Ass’n of Mfrs.

v. DOD, 138 S. Ct. 617, 632 (2018). As Justice Sotomayor recently explained on behalf 

of a unanimous Supreme Court, “Courts are required to give effect to Congress’ express 

inclusions and exclusions, not disregard them,” id. at 631 (citation omitted), and any 

maneuvering on the part of the government to re-write statutory language or ignore the 

clear precedent of the Supreme Court and Ninth Circuit should be rejected.

No other statutory provisions or other legal precedents support EPA’s attempts to 

jurisdictionally bind this delay action to the agency’s 2015 rulemaking to evade review 

by this Court. Rather, under the Clean Water Act, the mechanism for EPA to respond to 

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an administrative citizen petition to “reconsider” a rulemaking already in effect is through 

a new rulemaking. See 33 U.S.C. § 1311(d); id. § 1314(b); 5 U.S.C. § 553. In the 

meantime, the Act is clear that “compliance with effluent limitations,” such as those 

promulgated in 2015, must be achieved “as expeditiously as practicable but in no case 

later than three years after the date such limitations are promulgated.” 33 U.S.C. § 

1311(b)(2). 

Despite the illusion of complexity and distorted logic that EPA relies upon in its 

motion to dismiss, this motion presents the Court with a relatively straight-forward 

question of jurisdiction. In short, because the September 2017 Delay Rule is a distinct

final agency action that falls outside of the narrow list of actions over which the Clean 

Water Act provides the court of appeals exclusive jurisdiction, jurisdiction is proper in 

the district court, and the Court should DENY Federal Defendants’ Motion to Dismiss. 

FACTUAL BACKGROUND

In 2015, EPA published a final rule updating effluent limitation guidelines and 

standards for the power plant industry, and setting the first federal limits on the levels of 

toxic metals in wastewater that can be discharged from power plants. 80 Fed. Reg. 67,838 

(Nov. 3, 2015) (2015 Rule). “The final rule [was to be considered] effective on January 4, 

2016.” Id. at 67,838.

EPA estimated that the 2015 Rule would produce between $451 and $566 million 

in annual benefits, id. at 67,838, and prevent approximately 1.4 billion pounds of 

pollutants – including both toxic and bioaccumulative metals such as mercury, arsenic, 

cadmium, chromium, and selenium – from being discharged into our nation’s waterways 

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every year.1Id. at 67,839-41. Numerous parties, including UWAG, challenged the 2015 

Rule. Fed. Defs.’ Mot. at 4; Southwestern Electric Power Co. v. EPA, No. 15-60821 (5th 

Cir. Dec. 9, 2015). The Center did not file a challenge to the 2015 Rule, and is not a party 

to those proceedings. 

On March 24, 2017, while litigation was still ongoing around the 2015 Rule, 

UWAG filed an administrative citizen petition with EPA, requesting that the Agency

“reconsider” the 2015 Rule and initiate a new rulemaking. 82 Fed. Reg. at 43,495. On 

April 5, 2017, the Advocacy Office of the U.S. Small Business Administration filed a 

similar petition. Id.

On April 12, 2017, EPA sent a letter to UWAG accepting its citizen petition. Id. 

On April 25, 2017, prior to any public notice and comment, EPA published a notice in 

the Federal Register announcing a “postponement of the compliance dates that have not 

yet passed” in the 2015 Rule. 82 Fed. Reg. 19,005, 19,006 (Apr. 25, 2017). The notice 

cited as authority for the stay Section 705 of the APA, 5 U.S.C. § 705. Id.

On August 11, 2017, EPA sent an additional letter to UWAG informing it that the 

Agency would undertake a rulemaking to reconsider two of the six primary waste streams 

 

1 According to EPA, power plants as an industry discharge more toxic water pollution 

than any other industrial point source category in the United States. 80 Fed. Reg. at 

67,838. “[T]hese discharges account for about 30 percent of all toxic pollutants 

discharged into surface waters by all industrial categories regulated under the [Clean 

Water Act],” and when released into waterways are known to impair surface waters and 

harm native species, including by causing deformities and reproductive harm to fish and 

other wildlife. Id. at 67,839-40; see also id. at 67,873-74. They have also been known to 

contaminate drinking water and have been associated with a host of public health risks. 

Id. at 67,872-74. Once in the environment, many of these toxic pollutants will persist for 

years. Id. at 67, 838, 67,840.

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at power plants: bottom ash transport water and flue gas desulfurization wastewater. 82 

Fed. Reg. at 43,495. On September 18, 2017, after a brief notice and comment period, 

EPA published an additional notice in the Federal Register, withdrawing its April 25 

notice and putting in its place a two-year delay of compliance deadlines for the waste 

streams identified in the Agency’s August 11, 2017 letter. 82 Fed. Reg. 43,494 (Sept. 18, 

2017). The two-year delay became effective immediately upon publication. Id. at 43,499. 

ARGUMENT

I. Section 509 of the Clean Water Act Applies Only to Actions Approving or 

Promulgating an “Effluent Limitation or Other Limitation”

EPA relies on Section 509(b)(1)(E) of the Clean Water Act, 33 U.S.C. 

§ 1369(b)(1)(E), to support its contention that this Court lacks jurisdiction over Plaintiff’s 

claims. See Fed. Defs.’ Mot. at 1, 7-8. EPA’s dependence on Section 509(b)(1)(E) is 

misplaced because the Delay Rule does not approve or promulgate any “effluent 

limitation or other limitation” – a strictly held requirement of Section 509(b)(1)(E), and 

because Section 509(b)(1)(E) does not provide exclusive jurisdiction to the court of 

appeals to review an action that delays the compliance date of a rule already in effect. 

The “beginning point” of this analysis “must be the language of the statute.” 

Estate of Cowart v. Nicklos Drilling Co., 505 U.S. 469, 475 (1992). Section 509(b)(1) 

“enumerates seven categories of EPA actions that must be challenged directly in the 

federal courts of appeals.” Nat’l Ass’n of Mfrs., 138 S. Ct. at 628. Of those seven 

categories, subparagraph (E) is the only category that EPA alleges is at issue in this case.

Fed. Defs.’ Mot. at 8.

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Section 509(b)(1)(E) of the Clean Water Act, a provision often referred to as the 

Act’s “direct review provision,” provides in relevant part: 

Review of the Administrator's action . . . in approving or promulgating any 

effluent limitation or other limitation under section 301, 302, 306, or 405 . . . may 

be had by any interested person in the Circuit Court of Appeals of the United 

States . . . .

33 U.S.C. § 1369(b)(1)(E). 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.” 33 U.S.C. § 1362(11); see also 40 C.F.R. § 122.2. 

Beyond the seven categories specifically identified in Section 509(b)(1), the Clean 

Water Act does not include any additional or supplementary “catch all” provision that 

would route the review of more generalized agency actions – such as the delay of a 

compliance date – to the court of appeals. Compare Clean Air Act, 42 U.S.C. § 

7607(b)(1) (providing that petitions for review of “any other final action” taken by EPA

under the Clean Air Act must be filed in the court of appeals) with Clean Water Act, 33 

U.S.C. § 1369(b)(1) (lacking such a provision). Thus, for agency actions that are not 

subject to the Clean Water Act’s direct review provision, jurisdiction is proper in the 

district court. See Nat’l Ass’n of Mfrs., 138 S. Ct. at 624.

As the Supreme Court recently explained in National Association of 

Manufacturers v. U.S. Department of Defense, Section 509(b)(1)(E) is narrow and 

explicitly encompasses only EPA actions approving or promulgating effluent limitations 

or other limitations. 138 S. Ct. at 628-631. In that case, the Court considered whether the 

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court of appeals or district courts had jurisdiction to review EPA’s Waters of the United 

States Rule – a rule that defined the term “waters of the United States” under the Clean 

Water Act. Id. at 624; see also 80 Fed. Reg. 37,054 (June 29, 215). In so doing, the Court 

interpreted the plain language of Section 509(b)(1)(E), ultimately finding that plaintiffs’ 

challenge fell outside the scope of Section 509(b)(1)(E), and, therefore, that any 

challenges to the rule should properly be reviewed by the federal district court. Id. 

In arriving at that conclusion, the Supreme Court made a few fundamental 

determinations. First, while the Clean Water Act provides no explicit definition for “other 

limitation,” the Court established that the “text and structure” of Section 509(b)(1)(E) 

“suggests that an ‘other limitation’ must be similar in kind to an ‘effluent limitation’: that 

is, a limitation related to the discharge of pollutants,” with the unifying feature being the 

imposition of “restrictions on the discharge of certain pollutants.” Id. at 628-29; see also

33 U.S.C. § 1362(11) (definition of effluent limitation). Similarly here, the Delay Rule 

does not impose any restriction on the discharge of pollution; instead, the opposite is true: 

the Delay Rule “relieves a restriction on regulated entities.” 82 Fed. Reg. at 43,499 

(emphasis added). The elimination of a restriction is clearly not the type of agency action 

intended to be included in the definition of “effluent limitation” or “other limitation,” or 

within the scope of Section 509(b)(1)(E). 

Next, the Supreme Court determined that the use of the word “any” in subsection 

(E) (i.e. “any effluent limitation or other limitation”) does not connote a broad reading of 

that statutory section. Nat’l Ass’n of Mfrs., 138 S. Ct. at 629. Rather, “any” in the context 

of the section “cannot expand the phrase ‘other limitation’ beyond those limitations that, 

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like effluent limitations, restrict the discharge of pollutants.” Id. The Court established 

that “urging otherwise” would “read[] the words ‘effluent limitation and other’ 

completely out of the statute,” a “rewrite” that is not permitted under the constitutional 

structure of the judiciary. Id (citation omitted). The same reasoning applies here because 

reading a separate administrative delay action into the language of Section 509(b)(1)(E) 

would serve to “rewrite” and expand the applicability of that section, which would 

unlawfully enlarge the bounds of Section 509.

The Supreme Court then determined that 33 U.S.C. § 1361(a), which grants the 

Administrator of the EPA general “authority . . . ‘to prescribe . . . regulations,’” is not 

captured within the language of Section 509(b)(1)(E). Id. at 630 (quoting 33 U.S.C. § 

1361(a)). Comparably here, if EPA is relying on its “inherent authority” under 33 U.S.C. 

§ 1361(a) as support for the Delay Rule, see 82 Fed. Reg. at 43,496, that is not sufficient 

to bring this action into the terms of Section 509(b)(1)(E).

The Supreme Court additionally rejected EPA’s attempt to read a “practicaleffects” test into Section 509(b)(1)(E), finding that any such interpretation would not be 

grounded in the statutory text because applying a “practical-effects” test would, in effect, 

“ignore[] Congress’ decision to grant appellate courts exclusive jurisdiction only over 

seven enumerated” actions. Nat’l Ass’n of Mfrs., 138 S. Ct. at 631 (emphasis added); see 

also id. at 631-32 (rejecting a similar “functional interpretive approach” in applying 

Section 509(b)(1)(F)). Yet again, the same logic applies to EPA’s current efforts to 

shoehorn a delay action into the outline of an effluent limitation by wrongly claiming that 

the delay itself – which eliminates restrictions – can be an “effluent limitation or other 

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limitation” – which establish restrictions. 

Ninth Circuit precedent further reinforces the Supreme Court’s decision, advising 

that given the confined language of Section 509(b)(1) and the “peculiar sting” of its 

application, Longview Fibre Co. v. Rasmussen, 980 F.2d at 1313, courts should 

“‘counsel[ ] against [its] expansive application.’” Nw. Envtl. Advocates v. EPA, 537 F.3d 

1006, 1015 (9th Cir. 2008) (quoting League of Wilderness Defs. / Blue Mts. Biodiversity 

Project v. Forsgren, 309 F.3d 1181, 1190 n. 8 (9th Cir. 2002)); see also Longview Fibre 

Co. v. Rasmussen, 980 F.2d at 1313 (“‘If Congress had so intended, it could have simply 

provided that all EPA action under the statue would be subject to review in the courts of 

appeals, rather than specifying particular actions and leaving out others.’” (quoting 

Bethlehem Steel Corp. v. EPA, 538 F.2d 513, 517 (2d Cir. 1976))); Our Children’s Earth 

Found. v. EPA, 527 F.3d 842, 846-47 (9th Cir. 2008) (finding that the district court did 

not abuse its discretion in declining to transfer claims to the appellate court under Section 

509(b)(1)); ONRC Action v. United States Bureau of Reclamation, No. 97-3090, 2012

U.S. Dist. LEXIS 118153, at *73-78 (D.Or. Jan. 17, 2012) (adopting and applying the

analysis in NW Environmental Advocates). 

This case must be evaluated under that same framework. 2 See, e.g., Blue Water 

Balt., Inc. v. Pruitt, No. GLR-17-1253, 2018 U.S. Dist. LEXIS 18456, at *9-12 (D. Md. 

 

2

In its reply brief, EPA may try to analogize this case to Clean Water Action v. Pruitt,

No. 17-0817, 2018 U.S. Dist. LEXIS 64852 (D.D.C. Apr. 18, 2018). That case – which 

has a different procedural posture and claims than are on review in front of this Court –

was essentially decided narrowly based on the court’s denial of plaintiffs’ motion for 

leave to amend or supplement their complaint. Id. at *23-24. There, the question of 

jurisdiction was considered not on a motion to dismiss, but within the court’s analysis on 

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Feb. 5, 2018) (applying National Association of Manufacturers and finding jurisdiction in 

the district court to be proper based the Supreme Court’s interpretation of Section 

509(b)(1)). Yet, in its motion to dismiss EPA fails to articulate why the Clean Water 

Act’s direct review provision should be construed in any way other than its plain 

language. The closest EPA comes to touching on the idea that the Delay Rule must 

approve or promulgate an effluent limitation or other limitation to fit within the confines 

of Section 509(b)(1)(E) is to nonsensically claim that because Plaintiff’s Complaint 

details the harm to the environment, imperiled wildlife, and public health that will occur 

because of EPA’s action, that the Delay Rule itself must promulgate an effluent 

limitation. Fed. Defs.’ Mot. at 7-8. But harm as the result of a wrongful delay does not 

create an effluent limitation or other limitation; instead, it stands in direct conflict with

the definitions for those terms. 

 

plaintiffs’ motion to amend or supplement. Id at *13. It was only after denying plaintiffs’ 

motion to amend or supplement that the D.C. District Court dismissed the case on 

mootness grounds, finding that no live controversy continued to exist because plaintiffs

were unable to properly challenge the Delay Rule (a limitation not before the Court in 

this case). Id. at *24, 28. Further, in its analysis, the Clean Water Action court relied on 

an expansive interpretation of Section 509(b)(1) of the Clean Water Act that is contrary 

to National Association of Manufacturers. For example, the court there adopted EPA’s 

policy argument that it would be inefficient to construe the language of Section 509(b)(1) 

narrowly because it may create a bifurcated judicial review scheme. Id. at *15. However, 

the Supreme Court expressly rejected that argument in National Association of 

Manufacturers, concluding that the plain language set out by Congress in the Clean 

Water Act must control. 138 S. Ct. at 632-33. The court’s remaining analysis in Clean 

Water Action continues to run afoul of both the Supreme Court’s recent decision in 

National Association of Manufacturers and decades of Ninth Circuit precedent – all of 

which caution that a narrow reading of Section 509 is appropriate given the plain 

language of that statutory section. The jurisdictional analysis in Clean Water Action is 

also largely dicta and is not binding on this Court. 

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Indeed, the dissonance of EPA’s action in delaying compliance with the 2015 Rule 

is especially glaring when held up against the purpose of the Clean Water Act. Congress 

enacted the Clean Water Act in 1972 “to restore and maintain the chemical, physical, and 

biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a). The “national goal” set 

by Congress in passing the Act was to see the “discharge of pollutants into the navigable 

waters . . . eliminated.” Id. § 1251(a)(1). And it is those fundamental premises that are

imbued throughout the Act. See, e.g., id. § 1311(establishing effluent limitations). EPA’s 

Delay Rule, on the other hand, does not even purport to limit the discharge of pollution 

into waterways, let alone support the Act’s central purpose. 

EPA is not entitled to – and should not be granted – deference on its interpretation 

of a statute that defines the jurisdiction of the Court. Our Children’s Earth Found., 527 

F.3d at 846 n. 3; Friends of the Everglades v. EPA, 699 F.3d 1280, 1285 (11th Cir. 2012). 

In light of the plain language of the Section 509(b)(1)(E), Supreme Court precedent, and 

this Circuit’s own precedent, therefore, review of the Delay Rule is appropriate in the 

district court. 

II. EPA’s Delay Rule Is an Independent Final Agency Action under the APA that 

is Separate from the 2015 Rule 

EPA attempts to get around Section 509(b)(1)(E)’s threshold requirements by 

claiming that the Delay Rule is an amendment to the 2015 Rule and, therefore, that the 

Delay Rule itself is an effluent limitation subject to challenge in the circuit court. See

Fed. Defs.’ Mot. at 7-9. This argument is predicated on the incorrect notion that the rule 

challenged by the Center here is merely an extension of that earlier rulemaking, rather 

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than a final agency action in its own right that is subject to its own judicial review. 

However, the details, timing, and procedure undertaken by EPA in finalizing the Delay

Rule, as well as settled legal principles, clearly distinguish the Delay Rule as an 

independent final agency action subject to review in the district court.

1. The Delay Rule is not, nor could it be, part of the 2015 Rulemaking 

Process

EPA’s assertion that the Delay Rule “amends the 2015 ELG Rule and therefore 

constitutes an ELG Rule itself” is unmoored from the Clean Water Act and the agency’s

own administrative process. Fed. Defs.’ Mot. at 8 (emphasis in original). First, EPA’s 

position is inconsistent with the Clean Water Act because Congress did not grant EPA the 

authority to postpone or delay effluent limitations once they have been established, even 

for the purposes of reconsideration. 33 U.S.C. § 1311(b)(2) (providing that “compliance 

with effluent limitations” such as those promulgated in the 2015 Rule, must be achieved 

“as expeditiously as practicable but in no case later than three years after the date such 

limitations are promulgated”); see also 83 Fed. Reg. 5,200, 5,203 (Feb. 6, 2018) (as EPA

describes in a separate rulemaking, “Congress is very clear in the Clean Water Act . . .

when it requires a rule to be in effect by a specific time after promulgation,” and 33 

U.S.C. § 1311(b) is an example of where Congress has been clear that the Act requires 

compliance with “effluent limitation guidelines no later than three years after they are 

established.”).

This is meaningful because Congress expressly granted such authority to EPA

under other federal environmental laws. Compare Clean Air Act, 42 U.S.C. § 

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7607(d)(7)(B) (“The effectiveness of the rule may be stayed during such 

reconsideration . . . by the Administrator or the court for a period not to exceed three 

months”) with Clean Water Act, 33 U.S.C. § 1311(b)(2) (lacking such a provision). As 

the Supreme Court has reiterated on numerous occasions, “[w]e normally presume that, 

where words differ as they differ here, ‘Congress acts intentionally and purposely in the 

disparate inclusion or exclusion.’” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 

53, 63 (2006) (quoting Russello v. United States, 464 U.S. 16, 23 (1983)). 

Instead, the Act requires that any “[r]eview and revision of effluent limitations” be 

conducted “pursuant to the procedure established” in the statute. 33 U.S.C. § 1311(d). 

Those procedures, which include a multi-factor statutory analysis, were not followed in 

issuing the Delay Rule. See id. § 1314(b)(2)(B) (describing the factors EPA “shall take 

into account” in adopting or revising effluent limitation guidelines under the Act); see 

also id. §§ 1311 (b), (d). Indeed, the Delay Rule manifestly should not be considered to 

amendment the effluent limitations established through the 2015 Rule because it “does 

not . . . amend the effluent limitations guidelines and standards for the steam electric 

power generating point source category.” 82 Fed. Reg. at 43,495 (emphasis added); see 

also id. at 43,496 (responding to public comments by saying, “comments on the 

substantive requirements of the 2015 Rule . . . are outside the scope of this action, which 

concerns postponing certain compliance dates only . . .”).

EPA next attempts to rely on Nat. Res. Def. Council v. Abraham for the principle 

that “altering the effective date of a duly promulgated standard could be, in substance, 

tantamount to an amendment or rescission of the standards.” Fed. Defs.’ Mot. at 8-9

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(quoting Nat. Res. Def. Council v. Abraham, 355 F.3d 179, 194 (2d Cir. 2004) (Nat. Res. 

Def. Council). But EPA’s motion fails to provide this Court with the proper statutory 

context for that decision, which predates the Supreme Court’s recent holding in National 

Association of Manufacturers. 

First and importantly, Nat. Res. Def. Council concentrated on the direct review 

provision contained in the Energy Policy and Conservation Act (EPCA), not the Clean 

Water Act. In its analysis, the court established that the direct review provision in EPCA 

provides a “general grant of jurisdiction” that is so expansive that “most acts 

undertaken . . . under its grant of authority . . . are subject to review by the court of 

appeals.” 355 F.2d at 193. In stark contrast, as discussed above (supra 7-10), the 

Supreme Court and this Circuit’s precedent make clear that the Clean Water Act’s direct 

review provision is to be construed narrowly, and cannot be interpreted to cover actions 

that are not specifically included therein. Thus, unambiguously, while the Nat. Res. Def. 

Council court determined that the general grant of authority under EPCA was within the 

expansive scope of the Act’s direct appellate review provision, the Supreme Court in 

National Association of Manufacturers rejected that argument as to the Clean Water Act, 

finding that Section 509(b)(1) cannot be read so expansively.

The Second Circuit in Nat. Res. Def. Council also found that the delay rule there

was important to the court’s review because it simultaneously had in front of it the delay 

rule, the full withdrawal of the rule, and the replacement of the rule. Id. at 194. Here, 

while EPA has indicated that it may, at some point, initiate a future rulemaking related to

developing a new set of effluent limitations and standards for power plants, such 

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speculative statements by an indecisive agency do not establish the basis for a 

jurisdictional dismissal. See State of Cal. v. BLM, 286 F.Supp.3d 1054,1064 (N.D. Cal. 

2018) (finding that EPA’s delay rule must be analyzed as “a discrete agency action 

separate from any proposed future revision”); Appalachian Power Co. v. EPA, 208 F.3d 

1015, 1022 (D.C. Cir. 2000) (“[T]hat a law may be altered in the future has nothing to do 

with whether it is subject to judicial review” presently.).

2. EPA's Delay Rule is an independent final agency action taken almost two 

years after the effective date of the 2015 Rule 

The Delay Rule is a final agency action subject to judicial review, a point which is 

not disputed by EPA. See Fed. Defs.’ Mot. at 6 (“On September 12, 2017, the 

Administrator issued a final rule postponing . . .”). Courts have consistently held that 

agency actions to delay or suspend the effective date of an already final rule are, 

themselves, independently reviewable final agency actions. See, e.g., State of Cal. v. 

BLM, 286 F.Supp.3d at 1064 (finding the delay rule must be analyzed as “a discrete 

agency action”); Pineros Y Campesinos Unidos v. Pruitt, No. 17-03434, 2018 U.S. Dist.

LEXIS 60524, at *9 (N.D. Cal. Mar. 21, 2018) (finding EPA’s delay of the effective date

of a rule to be substantive rulemaking that must comply with the requirements of the

APA); Sierra Club v. Jackson, 813 F.Supp.2d 149, 162 (D.D.C. 2011) (holding that

EPA’s issuance of a delay notice under the APA is an action that is subject to judicial 

review in district court). Because the Delay Rule is a separate final agency action that 

does not establish or revise effluent limitations or other limitations, it is outside the 

narrow scope of Section 509(b)(1) and it is reviewable by this Court.

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III. Plaintiff's Claims Under the ESA and NEPA Also Belong in the District Court

The question posed in EPA’s second argument regarding which jurisdictional 

provision should apply in a situation where one subset of a claim provides for exclusive 

original jurisdiction in the court of appeals and another subset provides for a grant of 

jurisdiction in the district court, Fed. Defs.’ Mot. at 9-11, is not a question that this Court 

must reach since, as established above (supra 6-16), the direct review provision of 

Section 509(b)(1)(E) does not apply to this case. There are no further competing 

provisions under the Clean Water Act, ESA, NEPA, or the APA that otherwise provide 

an exclusive grant of jurisdiction to the court of appeals, rather than in the district court.

See 16 U.S.C. § 1540(g)(1) (“The district courts . . . have jurisdiction” over ESA citizen 

suits)3; Bennett v. Spear, 520 U.S. 154, 164-65 (determining that the ESA citizen suit 

provision creates “an authorization of remarkable breadth”); Lujan v. Nat’l Wildlife

Fed’n, 497 U.S. 871, 882 (1990) (recognizing that in bringing a claim under NEPA, 

Plaintiffs rely on the judicial review provisions of the APA); 5 U.S.C. § 702 (Right of

Review); 28 U.S.C. § 1331 (federal question jurisdiction).

CONCLUSION

For the foregoing reasons, Plaintiff requests that the Court deny Federal 

Defendants’ Motion to Dismiss for Lack of Jurisdiction. 

 

3 The ESA contains a broad “citizen suit” provision that authorizes “any person” to 

“commence a civil suit on his own behalf . . . to enjoin any person, including the United 

States and any other governmental instrumentality or agency . . . who is alleged to be in 

violation of any provision of this Act or regulation issued under the authority thereof.” 16 

U.S.C. § 1540(g)(1).

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Respectfully submitted this 3rd day of May, 2018. 

/s/ Hannah Connor

Hannah Connor (Florida Bar No. 125378)*

CENTER FOR BIOLOGICAL DIVERSITY

P.O. Box 2155 

St. Petersburg, FL 33731

Phone: (202) 681-1676 

Email: hconnor@biologicaldiversity.org

Robert Ukeiley (CO Bar No. 26747)*

CENTER FOR BIOLOGICAL DIVERSITY

1536 Wynkoop St., Ste. 421 

Denver, CO 80202

Phone: (720) 496-8568

email: rukeiley@biologicaldiversity.org

Jennifer L. Loda (CA Bar No. 284889)*

CENTER FOR BIOLOGICAL DIVERSITY

1212 Broadway, Ste 800

Oakland, CA 94612

Phone: 510-844-7100 x336

Email: jloda@biologicaldiversity.org

* Admitted pro hac vice

Counsel for Plaintiff Center for Biological Diversity

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CERTIFICATE OF SERVICE

I hereby certify that on May 3, 2018, I filed the foregoing with the Court’s 

electronic filing system, which will serve all counsel by electronic means.

/s/ Hannah Connor

Hannah Connor (Florida Bar No. 125378)

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