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Decker v. Northwest Environmental Defense Center

Consolidated with Georgia-Pacific West, Inc. v. Northwest Environmental Defense Center (11-347)
Docket No.11-338
Op. Below9th Cir.
ArgumentDec 3, 2012
Vote7-1
AuthorAnthony McLeod Kennedy
OpinionMar 20, 2013
TermOctober Term 2012
SCOTUS PageOpinion

Holding

A provision of the Clean Water Act governing challenges to Environmental Protection Agency actions, 33 U.S.C. § 1369(b), is not a jurisdictional bar to this suit, which alleges that the defendants had not obtained National Pollutant Discharge Elimination System permits before discharging stormwater runoff into two Oregon rivers. That provision is the exclusive vehicle for suits seeking to invalidate certain agency decisions, such as the establishment of effluent standards and the issuance of permits. It does not bar a district court from entertaining a citizen suit, like this one, under Section 1365 when the suit is against an alleged violator and seeks to enforce an obligation imposed by the Act or its regulations. Moreover, the EPA"s recent amendment to the Industrial Stormwater Rule does not make the cases moot.

Judgment

Reversed, 7-1, in an opinion by Anthony McLeod Kennedy on Mar 20, 2013. The Chief Justice filed a concurring opinion, which was joined by Justice Alito. Justice Scalia filed an opinion dissenting in part and concurring in part.

Disclosure: Goldstein & Russell, P.C., whose attorneys work for or contribute to this blog in various capacities, serves as counsel to the respondent in this case.

Holding: A provision of the Clean Water Act governing challenges to Environmental Protection Agency actions, 33 U.S.C. § 1369(b), is not a jurisdictional bar to this suit, which alleges that the defendants had not obtained National Pollutant Discharge Elimination System permits before discharging stormwater runoff into two Oregon rivers. That provision is the exclusive vehicle for suits seeking to invalidate certain agency decisions, such as the establishment of effluent standards and the issuance of permits. It does not bar a district court from entertaining a citizen suit, like this one, under Section 1365 when the suit is against an alleged violator and seeks to enforce an obligation imposed by the Act or its regulations. Moreover, the EPA”s recent amendment to the Industrial Stormwater Rule does not make the cases moot.

Judgment:”Reversed, 7-1, in an opinion by Justice Kennedy on March 20, 2013. The Chief Justice filed a concurring opinion, which was joined by Justice Alito. Justice Scalia filed an opinion dissenting in part and concurring in part.

Proceedings & orders timeline

Jul 29, 2011
Application (11A146) to extend the time to file a petition for a writ of certiorari from August 15, 2011 to September 14, 2011, submitted to Justice Kennedy.
Aug 3, 2011
Application (11A146) granted by Justice Kennedy extending the time to file until September 14, 2011.
Sep 13, 2011
Petition for a writ of certiorari filed. (Response due October 17, 2011)
Sep 21, 2011
Consent to the fiing of amicus curiae briefs, in suport of either party or of neither party, received from counsel for the petitioners.
Sep 23, 2011
Consent to the filing of amicus curiae briefs, in support of either party or of neither party, received from counsel for the respondent. VIDED.
Sep 30, 2011
Order extending time to file response to petition to and including November 18, 2011.
Oct 12, 2011
Brief amici curiae of National Association of Counties, et al. filed. VIDED.Oct 14, 2011
Brief amici curiae of Alabama Forestry Association, et al. filed. VIDED.Oct 14, 2011
Brief amici curiae of Arkansas, et al. filed. VIDED.Oct 17, 2011
Brief amici curiae of National Alliance of Forest Owners, et al. filed. VIDED.Oct 17, 2011
Brief amici curiae of American Forest Resource Council, et al. filed. VIDED.Oct 17, 2011
Brief amici curiae of Mountain States Legal FoundationNov 10, 2011
Brief of respondent Northwest Environmental Defense Center in opposition filed. VIDED.
Nov 22, 2011
DISTRIBUTED for Conference of December 9, 2011.
Nov 22, 2011
Reply of petitioners Marvin Brown, in His Official Capacity as Oregon State Forester, et al. filed. (Distributed)
Dec 12, 2011
The Solicitor General is invited to file a brief in this case expressing the views of the United States. Justice Breyer took no part in the consideration or decision of this petition.
May 24, 2012
Brief amicus curiae of United States filed. VIDED.Jun 4, 2012
Supplemental brief of respondent Northwest Environmental Defense Center filed. VIDED.Jun 4, 2012
Supplemental brief of petitioners Marvin Brown, in His Official Capacity as Oregon State Forester, et al. filed.
Jun 5, 2012
DISTRIBUTED for Conference of June 21, 2012.
Jun 25, 2012
Petition GRANTED The petition for a writ of certiorari in No. 11-347 is granted. The cases are consolidated and a total of one hour is allotted for oral argument. Justice Breyer took no part in the consideration or decision of this petition.
Jul 12, 2012
The time to file the joint appendix and petitioners' briefs on the merits is extended to and including August 21, 2012. VIDED.
Jul 12, 2012
The time to file respondents' brief on the merits is extended to and including October 2, 2012. VIDED.
Jul 18, 2012
Consent to the filing of amicus curiae briefs in support of either party or neither party received from counsel for the respondents. VIDED
Jul 23, 2012
Consent to the filing of amicus curiae briefs, in support of either party or of neither party, received from counsel for the petitioners.
Jul 25, 2012
The time to file the joint appendix and petitioners' briefs on the merits is further extended to and including August 28, 2012. VIDED
Jul 25, 2012
The time to file respondents' brief on the merits is further extended to and including October 16, 2012. VIDED
Aug 22, 2012
Brief amici curiae of Association of Oregon Counties, et al. filed. VIDED.
Aug 28, 2012
Brief of petitioners Doug Decker, in his official capacity as Oregon State Forester, et al. filed.
Aug 28, 2012
Joint appendix filed. (Jt. Appendix in 2 volumes) VIDED. (Statement of costs received.)
Aug 28, 2012
Brief amicus curiae of The Ruffed Grouse Society filed. VIDED.Aug 29, 2012
Brief amici curiae of American Forest Resource Council, et al. filed. VIDED.Aug 30, 2012
Brief amici curiae of National Governors Association, et al. filed. VIDED.
Aug 31, 2012
Brief amici curiae of National Association of Home Builders, et al. filed.
Sep 4, 2012
Brief amicus curiae of United States filed. VIDED.Sep 4, 2012
Brief amici curiae of Law Professors filed. VIDED.Sep 4, 2012
Brief amicus curiae of Chamber of Commerce of the United States of America filed. VIDED.Sep 4, 2012
Brief amici curiae of Arkansas, et al. filed. VIDED.Sep 4, 2012
Brief amici curiae of National Alliance of Forest Owners, et al. filed. VIDED.Sep 4, 2012
Brief amicus curiae of Mountain States Legal Foundation filed. VIDED. (Distributed)Sep 4, 2012
Brief amici curiae of Society of American Foresters, et al. filed. VIDED.Sep 4, 2012
Brief amici curiae of Pacific Legal Foundation, et al. filed. VIDED.
Sep 14, 2012
SET FOR ARGUMENT ON Monday, December 3, 2012.
Sep 28, 2012
Record received from U.S.C.A. for 9th Circuit. (1 envelope).
Sep 28, 2012
Record from U.S.D.C. for District of Oregon is electronic.
Oct 16, 2012
Brief of respondent Northwest Environmental Defense Center, et al. filed. VIDED. (Distributed)
Oct 17, 2012
CIRCULATED.
Oct 17, 2012
Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument filed. VIDED.
Oct 23, 2012
Brief amici curiae of Law Professors on Section 1369(b) Jurisdiction filed. VIDED. (Distributed)Oct 23, 2012
Brief amici curiae of Western Division of the American Fisheries Society, et al. filed. VIDED. (Distributed)Oct 23, 2012
Brief amici curiae of Robert Wayland, et al. filed. VIDED. (Distributed)Oct 23, 2012
Brief amicus curiae of Dr. Kevin Boston filed. VIDED. (Distributed)Oct 23, 2012
Brief amici curiae of Pacific Coast Federation of Fishermen's Associations, et al. filed. VIDED. (Distributed)Oct 23, 2012
Brief amici curiae of Environmental Protection Information Center, et al. filed. VIDED. (Distributed)Oct 23, 2012
Brief amici curiae of Law Professors on the Propriety of Administrative Deference filed. VIDED. (Distributed)Oct 23, 2012
Brief amici curiae of Northwest Environmental Advocates, et al. filed. VIDED. (Distributed)
Oct 30, 2012
Letter dated October 30, 2012, with attached Eleventh Circuit Decision, received from counsel for respondent Northwest Environmental Defense Center. Filed. VIDED. (Distributed)
Nov 13, 2012
Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument GRANTED. Justice Breyer took no part in the consideration or decision of this motion.
Nov 14, 2012
Reply of petitioners Doug Decker, in his official capacity as Oregon State Forester, et al. filed. (Distributed)
Nov 30, 2012
Letter from counsel for petitioners Georgia-Pacific West, Inc., et al., received and distributed. VIDED
Dec 3, 2012
Argued. For petitoners: Timothy S. Bishop, Chicago, Ill.; and Malcolm L. Stewart, Deputy Solicitor General, Department of Justice, Washington, D. C. (for United States, as amicus curiae.) For respondent: Jeffrey L. Fisher, Stanford, Cal.Dec 20, 2012
Motion to file a supplemental brief after argument filed by petitioners Doug Decker, in his official capacity as Oregon State Forester, et al. (Distributed)
Jan 8, 2013
Motion to file a supplemental brief after argument filed by petitioners GRANTED. The motion of petitioners in No. 11-338 for leave to file a supplemental brief after argument is granted. The other parties to these cases and the Solicitor General may file supplemental briefs, not to exceed 3,000 words each, addressing the effect of the Environmental Protection Agency
Jan 22, 2013
Supplemental brief of respondent Northwest Environmental Defense Center filed. VIDED. (Distributed)Jan 22, 2013
Supplemental brief of the United States filed. VIDED. (Distributed)
Mar 20, 2013
Judgment REVERSED and case REMANDED. Kennedy, J., delivered the opinion of the Court, in which Roberts, C. J., and Thomas, Ginsburg, Alito, Sotomayor, and Kagan, JJ., joined, and in which Scalia, J., joined as to Parts I and II. Roberts, C. J., filed a concurring opinion, in which Alito, J., joined. Scalia, J., filed an opinion concurring in part and dissenting in part. Breyer, J., took no part in the consideration or decision of the cases.
Apr 22, 2013
JUDGMENT ISSUED.

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