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Crown Simpson Pulp Co. v. Costle

ELR Citation: 10 ELR 20230
Nos. No. 79-797, 445 U.S. 193/14 ERC 1151/(U.S., 03/17/1980) Rev'd

In a per curiam opinion, the Supreme Court reverses a Ninth Circuit Court of Appeals decision, 9 ELR 20603, and rules that the Environmental Protection Agency's (EPA's) veto of a proposed national pollutant discharge elimination system (NPDES) permit issued by a duly authorized state agency is directly reviewable in the court of appeals under §509(b) of the Federal Water Pollution Control Act. The Ninth Circuit held that EPA's veto of a state-issued permit constituted neither action "approving or promulgating any effluent limitation" nor action "denying any permit" and thus was not subject to review in the court of appeals under §509(b)(1)(E) or §509(b)(1)(F), respectively. This reading of the Act, the Supreme Court explains, would result in a seemingly irrational bifurcated system of judicial review in which NPDES permit denials were reviewable at different levels in the federal court system depending upon whether the relevant state has received permit issuing authority. The Court rules that EPA's objection to effluent limitations contained in a state-issued permit constitutes action "denying" a permit within the meaning of §509(b)(1)(F) and is thus directly reviewable in the court of appeals. The Ninth Circuit's dismissal for lack of jurisdiction is therefore reversed and the case remanded for further proceedings.

Counsel for Petitioners
W. Reece Bader, Jack B. Owens, Alan C. Waltner
Orrick, Herrington, Rowley & Sutcliffe
600 Montgomery St., San Francisco CA 94111
(415) 392-1122

Counsel for Respondent
James A. Rogers, Assoc. General Counsel
Office of the General Counsel
Environmental Protection Agency, Washington DC 20460
(202) 755-2511