Deschutes River Alliance v. Portland General Electric Company

Motion to Dismiss for Lack of Jurisdiction Fed.R. Civ. P. 12

D. Or.September 30, 2016

PORTLAND GENERAL ELECTRIC’S MOTION TO DISMISS BETH S. GINSBERG, OSB # 070890 MICHAEL R. CAMPBELL, OSB # 870016 Stoel Rives LLP 600 University Street, Suite 3600 Seattle, WA 98101 Telephone: (206) 386-7581 Facsimile: (206) 386-7500 Email: beth.ginsberg@stoel.com Email: michael.campbell@stoel.com Attorneys for Defendant UNITED STATES DISTRICT COURT DISTRICT OF OREGON PORTLAND DIVISION DESCHUTES RIVER ALLIANCE, an Oregon nonprofit corporation, Plaintiff, v. PORTLAND GENERAL ELECTRIC COMPANY, an Oregon corporation, Defendant. Case No.: 16-cv-01644-SI PORTLAND GENERAL ELECTRIC’S MOTION TO DISMISS PURSUANT TO FED. R. CIV. P. 12(b)(1) ORAL ARGUMENT REQUESTED Case 3:16-cv-01644-SI Document 7 Filed 09/30/16 Page 1 of 26 Page i - PORTLAND GENERAL ELECTRIC’S MOTION TO DISMISS 88533458.1 0032758-00173 TABLE OF CONTENTS Page TABLE OF AUTHORITIES .......................................................................................................... ii L.R. 7-1 CERTIFICATION .............................................................................................................1 MOTION..........................................................................................................................................1 LEGAL MEMORANDUM IN SUPPORT OF PGE'S MOTION TO DISMISS PURSUANT TO FED. R. CIV. P. 12 (b)(1) ...................................................................................1 I. INTRODUCTION ...............................................................................................................1 II. STATEMENT OF THE CASE ............................................................................................2 A. Statement of Law .................................................................................................... 2 B. Statement of the Facts ............................................................................................. 5 III. ARGUMENT .......................................................................................................................6 A. Standard of Review ................................................................................................. 6 B. The Court Lacks Subject Matter Jurisdiction to Hear This Case............................ 7 1. The Conditions of a Section 401 Certification Are Not an “Effluent Standard or Limitation” ...............................................................................7 2. Section 401 Certification Conditions Are Enforceable Only as Conditions of the Federal License or Permit into Which They Are Incorporated ...............................................................................................11 3. The CWA Does Not Give EPA or the States the Authority to Enforce Section 401 Certification Conditions ...........................................14 4. Congress Did Not Intend to Provide Citizens with CWA Enforcement Powers Greater Than Those Granted to EPA or States ........16 IV. CONCLUSION ..................................................................................................................18 Case 3:16-cv-01644-SI Document 7 Filed 09/30/16 Page 2 of 26 Page ii - PORTLAND GENERAL ELECTRIC’S MOTION TO DISMISS 88533458.1 0032758-00173 TABLE OF AUTHORITIES Page(s) Cases Airport Cmtys. Coal. v. Graves, 280 F. Supp. 2d 1207 (W.D. Wash. 2003) ...............................................................................14 Am. Rivers, Inc. v. FERC, 129 F.3d 99 (2d Cir. 1997).................................................................................................12, 13 Askins v. Ohio v. Dep’t of Agric., 809 F.3d 868 (6th Cir. 2016) ...................................................................................9, 10, 16, 18 Barnhart v. Sigmon Coal Co., 534 U.S. 438 (2002) ...................................................................................................................9 Bennett v. Spear, 520 U.S. 154 (1997) ...................................................................................................................9 Black Warrior Riverkeeper, Inc. v. Black Warrior Minerals, Inc., 734 F.3d 1297 (11th Cir. 2013) ...............................................................................................16 Cascade Conservation League v. M.A. Segale, Inc., 921 F. Supp. 692 (W.D. Wash. 1996) ........................................................................................9 Chubb Custom Ins. Co. v. Space Sys./Loral, Inc., 710 F.3d 946 (9th Cir. 2013) ...................................................................................................18 Columbia Riverkeeper v. U.S. Coast Guard, 761 F.3d 1084 (9th Cir. 2014) .................................................................................................13 Conn. Nat’l Bank v. Germain, 503 U.S. 249 (1992) ...................................................................................................................9 First Iowa Hydro-Elec. Coop. v. Fed. Power Comm’n, 328 U.S. 152 (1946) ...................................................................................................................4 Gwaltney of Smithfield, Ltd v. Chesapeake Bay Foundation, Inc., 484 U.S. 49 (1987) .............................................................................................................17, 18 Inst. for Wildlife Prot. v. Norton, 337 F. Supp. 2d 1223 (W.D. Wash. 2004) .................................................................................7 Klamath Claims Comm. v. United States, 541 F. App’x 974 (Fed. Cir. 2013) ............................................................................................7 Case 3:16-cv-01644-SI Document 7 Filed 09/30/16 Page 3 of 26 Page iii - PORTLAND GENERAL ELECTRIC’S MOTION TO DISMISS 88533458.1 0032758-00173 Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375 (1994) ...............................................................................................................6, 8 McCarthy v. United States, 850 F.2d 558 (9th Cir. 1988) .....................................................................................................7 Middlesex Cty. Sewerage Auth. v. City of Portland, 453 U.S. 1 (1981) .....................................................................................................................11 Modesto Irrigation Dist. v. Pac. Gas & Elec. Co., 61 F. Supp. 2d 1058 (N.D. Cal. 1999), rev’d, 54 F. App’x 882 (9th Cir. 2002) .......................7 Northwest Environmental Defense Center v. U.S. Army Corps of Engineers (NEDC), 118 F. Supp. 2d 1115 (D. Or. 2000) ..................................................................................10, 11 Or. Nat. Desert Ass’n v. Dombeck, 172 F.3d 1092 (9th Cir. 1998) .................................................................................................10 Or. Nat. Res. Council v. U.S. Forest Serv., 834 F. 2d 842 (9th Cir. 1987) ....................................................................................................9 Rasul v. Bush, 542 U.S. 466 (2004) ...................................................................................................................8 In re Rufener Constr., Inc. 53 F.3d 1064 (9th Cir. 1995) ...................................................................................................14 Russello v. United States, 464 U.S. 16 (1983) .....................................................................................................................9 S.D. Warren Co. v. Maine Bd. of Envtl. Prot., 547 U.S. 370 (2006) ...................................................................................................................4 S.F. Baykeeper v. Cargill Salt Div., 481 F.3d 700 (9th Cir. 2007) ...................................................................................................16 Stillwater of Crown Point Homeowner’s Ass’n v. Stiglich, 999 F. Supp. 2d 1111 (N.D. Ind. 2014) ...................................................................................11 Tosco Corp. v. Cmtys. for a Better Env’t, 236 F.3d 495 (9th Cir. 2001) .....................................................................................................6 Walls v. Waste Res. Corp., 761 F.2d 311 (6th Cir. 1985) ...................................................................................................17 Washington Trout v. McCain Foods, Inc., 45 F.3d 1351 (9th Cir. 1995) ...................................................................................................17 Case 3:16-cv-01644-SI Document 7 Filed 09/30/16 Page 4 of 26 Page iv - PORTLAND GENERAL ELECTRIC’S MOTION TO DISMISS 88533458.1 0032758-00173 Statutes 16 U.S.C. § 797(e) ...........................................................................................................................4 16 U.S.C. § 803(a) ...........................................................................................................................4 16 U.S.C. § 823b ..................................................................................................................4, 12, 16 16 U.S.C. § 825l(a)-(b) ..................................................................................................................16 33 U.S.C. § 1251(a) .........................................................................................................................2 33 U.S.C. §1251(b) ........................................................................................................................16 33 U.S.C. § 1311 ..............................................................................................................................2 33 U.S.C. § 1319(a)(3) ...................................................................................................................15 33 U.S.C. § 1319(b) .......................................................................................................................15 33 U.S.C. § 1319(c)(1)(A) .............................................................................................................15 33 U.S.C. § 1341 .................................................................................................................... passim 33 U.S.C. § 1341(a)(1) .....................................................................................................2, 3, 12, 13 33 U.S.C. § 1341(d) ...................................................................................................................3, 12 33 U.S.C. § 1342 ..............................................................................................................................2 33 U.S.C. § 1365 ..............................................................................................................................4 33 U.S.C. § 1365(a)(1) .....................................................................................................................4 33 U.S.C. § 1365(a)(1)(A) ...............................................................................................................8 33 U.S.C. § 1365(b)(1)(A) .............................................................................................................17 33 U.S.C. § 1365(f) ......................................................................................................................1, 8 33 U.S.C. § 1365(f)(5) .....................................................................................................................4 33 U.S.C. § 1365(f)(6) .................................................................................................................5, 8 33 U.S.C. § 1377(e) .........................................................................................................................2 Rules Fed. R. Civ. P. 12(b)(1)......................................................................................................1, 6, 7, 19 Case 3:16-cv-01644-SI Document 7 Filed 09/30/16 Page 5 of 26 Page v - PORTLAND GENERAL ELECTRIC’S MOTION TO DISMISS 88533458.1 0032758-00173 Fed. R. Civ. P. 12(b)(7)....................................................................................................................5 Fed. R. Civ. P. 12(h)(3)....................................................................................................................7 Fed. R. Civ. P. 19 .............................................................................................................................5 Other Authorities Black’s Law Dictionary (5th ed. 1981) ..........................................................................................13 S. Rep. No. 92-414 (1971) .............................................................................................................17 Case 3:16-cv-01644-SI Document 7 Filed 09/30/16 Page 6 of 26 Page 1 - PORTLAND GENERAL ELECTRIC’S MOTION TO DISMISS 88533458.1 0032758-00173 L.R. 7-1 CERTIFICATION Consistent with Local Rule 7-1, attorneys for Portland General Electric conferred with Doug Quark, an attorney representing the Deschutes River Alliance ("DRA"), prior to the filing of this Motion to Dismiss. After notifying Mr. Quark that PGE would be moving to dismiss their appeal for lack of subject matter jurisdiction, Mr. Quark indicated that DRA opposes this Motion. MOTION Portland General Electric Company hereby moves under Fed. R. Civ. P. 12(b)(1) for dismissal of the above captioned case because this Court lacks subject matter jurisdiction to resolve this suit. This Motion is supported by the attached Legal Memorandum and the Declaration of Beth S. Ginsberg. Consistent with the plain terms of 33 U.S.C. § 1365(f) and the interdependent structures of the Federal Water Pollution Control Act and Federal Power Act, PGE respectfully requests that this case be dismissed with prejudice. LEGAL MEMORANDUM IN SUPPORT OF PGE'S MOTION TO DISMISS PURSUANT TO FED. R. CIV. P. 12 (b)(1) I. INTRODUCTION Portland General Electric Company (“PGE”) hereby moves under Fed. R. Civ. P. 12(b)(1) for dismissal of the above captioned case because this Court, as a Court of limited jurisdiction, lacks the requisite subject matter jurisdiction to resolve this suit. Under the Federal Water Pollution Control Act (“CWA” or the “Act”), Congress provided “citizens” with the right to pursue alleged violations of specifically enumerated provisions of the Act. See 33 U.S.C. § 1365(f). In so doing, Congress chose not to allow citizens to enforce conditions expressed in a certification issued under CWA section 401, 33 U.S.C. § 1341. Case 3:16-cv-01644-SI Document 7 Filed 09/30/16 Page 7 of 26 Page 2 - PORTLAND GENERAL ELECTRIC’S MOTION TO DISMISS 88533458.1 0032758-00173 Here, however, plaintiff Deschutes River Alliance (“DRA”) has brought a claim against PGE—only one of the two owners and operators of the Pelton Round Butte Hydroelectric Project (the “Project”)—asserting violations of the conditions set forth in the section 401 certification that the Oregon Department of Environmental Quality (“DEQ”) issued to PGE and the Confederated Tribes of the Warm Springs Reservation of Oregon (“CTWS”). As this cause of action, whether brought by a citizen, a state, or the U.S. Environmental Protection Agency (“EPA”), is not authorized by the CWA, this Court lacks subject matter jurisdiction and the case should be dismissed. II. STATEMENT OF THE CASE A. Statement of Law The CWA seeks to restore and maintain the biological, physical, and chemical integrity of waters of the United States. See 33 U.S.C. § 1251(a). To achieve this goal, the CWA relies primarily on a wastewater discharge permitting program, the National Pollutant Discharge Elimination System (“NPDES”) program under CWA section 402, which is administered and enforced by EPA and states and tribes to which EPA has delegated the program. See 33 U.S.C. §§ 1311, 1342. Under CWA section 401, applicants for a federal license or permit involving a discharge into waters of the United States (such as a discharge from a dam) must obtain a certification from the state1 that the discharge will comply with specific CWA provisions. See 33 U.S.C. § 1341(a)(1). The federal license or permit may not be issued until the certification has been obtained or the state has waived the certification requirement by failing to act on a request for certification within a reasonable time. See id. CWA subsection 401(a)(1) provides: 1 Pursuant to CWA subsection 518(e), 33 U.S.C. § 1377(e), EPA may approve Indian Tribes for treatment as a state under the CWA. EPA has approved CTWS for treatment as a state. Case 3:16-cv-01644-SI Document 7 Filed 09/30/16 Page 8 of 26 Page 3 - PORTLAND GENERAL ELECTRIC’S MOTION TO DISMISS 88533458.1 0032758-00173 Any applicant for a Federal license or permit to conduct any activity . . . which may result in any discharge into the navigable waters, shall provide the licensing or permitting agency a certification from the State in which the discharge originates . . . that any such discharge will comply with the applicable provisions of sections 1311, 1312, 1313, 1316, and 1317 of this title [CWA sections 301, 302, 303, 306, and 307]. . . . If the State . . . fails or refuses to act on a request for certification, within a reasonable period of time . . . after receipt of such request, the certification requirements of this subsection shall be waived with respect to such Federal application. No license or permit shall be granted until the certification required by this section has been obtained or has been waived . . . . No license or permit shall be granted if certification has been denied . . . . 33 U.S.C. § 1341(a)(1). In other words, the certification required under section 401 is a statement confirming that the discharge will comply with specified provisions of the CWA. Under section 401, a state receiving the applicant’s certification request has the discretion to: 1) grant the certification; 2) grant the certification with certain conditions that must be incorporated into the federal license for which the certification is sought; 3) waive the obligation to obtain a certification; or 4) deny the certification altogether. 33 U.S.C. § 1341(a)(1), (d). The certification functions not as a separate and legally enforceable permit or license for an activity, but rather as a condition precedent to the issuance of any federal license or permit. Id.; see also Declaration of Beth S. Ginsberg, Ex. A (“FERC Project License”) at ¶ 102; Ex. B (DEQ section 401 Certification) at 1 ("Upon [FERC] issuance of a new license… [PGE and CTWS] shall comply with the following § 401 conditions…") (emphasis added). Instead of making the “certification” enforceable by itself, Congress provided that any specific terms that condition a state’s section 401 certification “shall become a condition on any Federal license or permit” subject to certification. 33 U.S.C. § 1341(d). Thus, certification conditions are enforceable by the federal licensing or permitting agency in the same manner as other license or permit conditions. Case 3:16-cv-01644-SI Document 7 Filed 09/30/16 Page 9 of 26 Page 4 - PORTLAND GENERAL ELECTRIC’S MOTION TO DISMISS 88533458.1 0032758-00173 Under the Federal Power Act (“FPA”), Congress has vested the Federal Energy Regulatory Commission (“FERC”) with the exclusive authority to license and regulate hydropower resources, such as the Project. See, e.g., 16 U.S.C. § 797(e); 16 U.S.C. § 803(a); First Iowa Hydro-Elec. Coop. v. Fed. Power Comm’n, 328 U.S. 152, 175-76 (1946). As a federal license for an activity that involves a discharge to “navigable waters,” however, a FERC hydropower license is subject to the CWA section 401 certification requirement. See S.D. Warren Co. v. Maine Bd. of Envtl. Prot., 547 U.S. 370, 374-78 (2006). Thus, FERC may not issue a hydropower license in the absence of a section 401 certification (or the state’s waiver of the certification requirement), and any condition of the certification becomes a condition of the FERC license. Such conditions are enforceable by FERC in the same manner as other license conditions. See 16 U.S.C. § 823b. Congress has provided citizens with a limited private right of action to enforce certain provisions of the CWA. See 33 U.S.C. § 1365. As relevant to DRA's Complaint, CWA subsection 505(a)(1) provides that “any citizen may commence a civil action” against any person . . . who is alleged to be in violation of (A) an effluent standard or limitation under this chapter [the CWA] …. 33 U.S.C. § 1365(a)(1). CWA subsection 505(f) defines “effluent standard or limitation” as including “(5) certification under section 1341 [CWA § 401] of this title.” 33 U.S.C. § 1365(f)(5). Thus, Congress clearly authorized a citizen suit to enforce the requirement to obtain a CWA section 401 certification. Nothing in section 505, section 401, or elsewhere in the CWA, however, authorizes EPA, the certifying state or tribe, or anyone else to enforce the conditions of a certification, which are enforceable instead by the federal licensing or permitting agency, such as FERC. And, indeed, the definition of “effluent standard or limitation” in CWA subsection 505(f) makes no mention of certification conditions; it refers only to the certification Case 3:16-cv-01644-SI Document 7 Filed 09/30/16 Page 10 of 26 Page 5 - PORTLAND GENERAL ELECTRIC’S MOTION TO DISMISS 88533458.1 0032758-00173 requirement itself. In contrast, CWA subsection 505(f)(6) defines “effluent standard or limitation” to include both the requirement to obtain an NPDES permit under CWA section 402 and any “condition thereof.” 33 U.S.C. § 1365(f)(6) (emphasis added). B. Statement of the Facts Along with CTWS, PGE co-owns and co-operates the Project, which consists of three dams and associated hydroelectric facilities on the Deschutes River that are licensed and regulated by FERC: the Pelton Dam, Round Butte Dam, and the Pelton Reregulating Dam. See Ginsberg Decl., Ex. A at ¶ 11.2 Prior to FERC’s issuance of the current license for the Project, PGE and CTWS provided FERC with a certification from both DEQ and the CTWS Water Control Board (“WCB”) stating that discharges from the Project to the Deschutes River would comply with specified provisions of the CWA. Ginsberg Decl., Ex. B at 1; Complaint at ¶ 20. As is often the case, the CWA section 401 certification issued by DEQ to PGE and CTWS was predicated on several conditions. Those conditions were specified in the certification and incorporated into the FERC license issued to PGE and CTWS. Complaint at ¶ 20 (stating that the terms of the section 401 certification were incorporated into the FERC license for the Project). In addition to being jointly addressed to both PGE and CTWS, the certification confirmed that its terms and conditions were not effective until incorporated into the FERC Project License. Ginsberg Decl., Ex. B at 1. 2 CTWS is a necessary party to this suit because, as demonstrated by the discrete facts set forth in this motion, CTWS is the joint owner and operator of the three dams that, together, comprise the Project, and the exclusive owner of the generating facilities of the Reregulating Dam at issue in the Complaint. See Ginsberg Decl., Ex. A at ¶¶ 3-4, 19-80; Ex. C at 8-11. Thus, any relief that might be awarded in this case would harm CTWS’ sovereign and pecuniary interests in the Project and the natural resources at issue. PGE will file a separate motion to address this issue pursuant to Fed. R. Civ. P. 12(b)(7) and 19, if necessary, after this Court decides the instant motion. Case 3:16-cv-01644-SI Document 7 Filed 09/30/16 Page 11 of 26 Page 6 - PORTLAND GENERAL ELECTRIC’S MOTION TO DISMISS 88533458.1 0032758-00173 On May 13, 2016 and June 1, 2016, respectively, DRA sent PGE and CTWS letters stating DRA’s intent to file suit to enforce the conditions set forth in DEQ’s section 401 certification. Ginsberg Decl., Ex. D. However, on August 12, 2016, DRA elected to file suit against PGE alone, alleging ongoing violations of the conditions set forth in the CWA section 401 certification that DEQ issued jointly to CTWS and PGE. Complaint at ¶ 30. Notably, DRA does not seek to enforce the FERC license that gives effect to DEQ’s certification conditions, and does not seek to enforce conditions set forth in the section 401 certification issued by WCB. See generally Complaint. DRA also failed to join CTWS as co-owners, co- operators, and joint licensees of the Project. Id. III. ARGUMENT A. Standard of Review When subject matter jurisdiction is challenged under Fed. R. Civ. P. 12(b)(1), the plaintiff has the burden of proving jurisdiction in order to survive the motion. As explained by the Supreme Court, “it is to be presumed that a cause lies outside [of federal courts’] limited jurisdiction, and the burden of establishing the contrary rests upon the party asserting jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). A plaintiff suing in a federal court must show in his pleading, affirmatively and distinctly, the existence of whatever is essential to federal jurisdiction, and, if he does not do so, the court, on having the defect called to its attention or on discovering the same, must dismiss the case, unless the defect be corrected by amendment. Tosco Corp. v. Cmtys. for a Better Env’t, 236 F.3d 495, 499 (9th Cir. 2001) (citations and internal quotation marks omitted). When considering a Rule 12(b)(1) motion to dismiss, the court is not restricted to the face of the pleadings, but may review evidence outside the pleadings to resolve factual disputes Case 3:16-cv-01644-SI Document 7 Filed 09/30/16 Page 12 of 26 Page 7 - PORTLAND GENERAL ELECTRIC’S MOTION TO DISMISS 88533458.1 0032758-00173 concerning the existence of jurisdiction, without converting the motion to dismiss into one for summary judgment. McCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 1988); Inst. for Wildlife Prot. v. Norton, 337 F. Supp. 2d 1223, 1226 (W.D. Wash. 2004).3 If the court determines at any time that it lacks subject matter jurisdiction, it must dismiss the action. Fed. R. Civ. P. 12(h)(3). B. The Court Lacks Subject Matter Jurisdiction to Hear This Case This case improperly seeks to enforce the conditions set forth in the CWA section 401 certification issued by DEQ. The citizen suit provision, however, does not authorize this challenge. Because Congress was clear when it granted private parties the right to pursue under CWA subsection 505(a) by enumerating them with specificity, and chose not to include violations of conditions set forth in a section 401 certification, this Court lacks subject matter jurisdiction to hear this case and should dismiss it with prejudice pursuant to Fed. R. Civ. P. 12(b)(1). 1. The Conditions of a Section 401 Certification Are Not an “Effluent Standard or Limitation” It is axiomatic that “‘[f]ederal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute, which is not to be expanded by judicial 3 While not strictly necessary to resolve this motion, which can be decided as a matter of law, PGE has provided the Court with: (1) excerpts of the license issued by FERC jointly to PGE and CTWS; (2) the CWA section 401 certification issued by DEQ jointly to PGE and CTWS; (3) excerpts from the Long-Term Global Settlement and Compensation Agreement entered into by PGE and CTWS; and (4) copies of the notice letters that Plaintiff sent to PGE and CTWS regarding its intent to file suit against both entities. See Ginsberg Decl., Exs. A-D; Modesto Irrigation Dist. v. Pac. Gas & Elec. Co., 61 F. Supp. 2d 1058, 1066-67 (N.D. Cal. 1999), rev’d, 54 F. App’x 882 (9th Cir. 2002) (taking judicial notice of FERC filings); Klamath Claims Comm. v. United States, 541 F. App’x 974 (Fed. Cir. 2013) (taking judicial notice of the publicly available records of the tribal government whose accuracy could not be reasonably questioned). Case 3:16-cv-01644-SI Document 7 Filed 09/30/16 Page 13 of 26 Page 8 - PORTLAND GENERAL ELECTRIC’S MOTION TO DISMISS 88533458.1 0032758-00173 decree.’” Rasul v. Bush, 542 U.S. 466, 489 (2004) (quoting Kokkonen, 511 U.S. at 377). To determine whether this Court has the requisite subject matter jurisdiction to hear this case, the Court must turn to the plain language of CWA subsection 505(a)(1)(A), the provision of the Act that Plaintiff invokes as the jurisdictional basis of this suit. That section provides that any citizen may commence a civil action against any person . . . who is alleged to be in violation of (A) an effluent standard or limitation under this chapter . . . . 33 U.S.C. § 1365(a)(1)(A). Accordingly, to resolve the jurisdictional issue presented, the Court must determine whether the conditions set forth in a CWA section 401 certification fall under the operative terms “effluent standard or limitation.” Subsection 505(f) defines “effluent standard or limitation” as: [A]n unlawful act under subsection (a) of section 1311 of this title; (2) an effluent limitation or other limitation under section 1311 or 1312 of this title; (3) standard of performance under section 1316 of this title; (4) prohibition, effluent standard or pretreatment standards under section 1317 of this title; (5) certification under section 1341 [CWA § 401] of this title; (6) a[n NPDES] permit or condition thereof issued under section 1342 [CWA § 402] of this title, which is in effect under this chapter (including a requirement applicable by reason of section 1323 of this title); or (7) a regulation under section 1345(d) of this title. 33 U.S.C. § 1365(f). While subsection 505(f)(5) includes a “certification under section 1341,” it notably does not include its conditions. This is key because when Congress wanted (in the immediately following subsection) to allow a citizen to enforce not only the need for a CWA NPDES discharge permit, but the specific conditions of the permit, it explicitly said so. Cf. 33 U.S.C. § 1365(f)(6) (authorizing a citizen suit to enforce “a permit or condition thereof” issued under section 1342 (emphasis added)). Given the level of specificity evidenced in the plain language of the Act, and specifically the inclusion of the phrase “and conditions thereof” in Case 3:16-cv-01644-SI Document 7 Filed 09/30/16 Page 14 of 26 Page 9 - PORTLAND GENERAL ELECTRIC’S MOTION TO DISMISS 88533458.1 0032758-00173 one subsection, but not another, we must infer that Congress meant exactly what it said and give effect to the statute’s plain meaning. Barnhart v. Sigmon Coal Co., 534 U.S. 438, 452 (2002); Russello v. United States, 464 U.S. 16, 23 (1983) (explaining that when “‘Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion’” (citation omitted)). Indeed, the canons of statutory construction dictate that “‘courts must presume that a legislature says in a statute what it means and means in a statute what it says there.’” Cascade Conservation League v. M.A. Segale, Inc., 921 F. Supp. 692, 697 (W.D. Wash. 1996) (quoting Conn. Nat’l Bank v. Germain, 503 U.S. 249, 253-54 (1992), and strictly construing breadth of CWA citizen suit provision to exclude suits against EPA to enforce a duty against the Corps, which is not named under section 505); Or. Nat. Res. Council v. U.S. Forest Serv., 834 F. 2d 842 (9th Cir. 1987) (holding that CWA section 505 did not include a cause of action to enforce water quality standards that are not otherwise incorporated into NPDES permits issued under section 402); see also Bennett v. Spear, 520 U.S. 154, 173 (1997) (exhorting courts to give effect to every clause and word of a statute). In an analogous recent case, the Sixth Circuit dismissed a CWA citizen suit that alleged that a state had failed to comply with a notice requirement under CWA section 1314, concluding that it lacked subject matter jurisdiction to resolve that claim. Askins v. Ohio v. Dep’t of Agric., 809 F.3d 868, 873 (6th Cir. 2016).4 Employing the statutory doctrine of “expressio unius est 4 No decision within the Ninth Circuit has decided whether a citizen may file a CWA section 505 suit based on alleged violations of conditions contained in a section 401 certification. However, the Ninth Circuit— without deciding the issue—has made passing reference to the issue in a case challenging issuance of a cattle grazing permit absent a CWA section 401 (continued . . .) Case 3:16-cv-01644-SI Document 7 Filed 09/30/16 Page 15 of 26 Page 10 - PORTLAND GENERAL ELECTRIC’S MOTION TO DISMISS 88533458.1 0032758-00173 exclusio alterius,” the Askins court construed the plain language of CWA subsections 505(a) and (f) and concluded that sections not mentioned in the explicit list of statutory sections giving rise to a private right of action were “‘excluded by deliberate choice, not inadvertence.’” Id. (citation omitted). Thus, in concluding that Congress did not grant the Askins a private right of action to compel agency compliance with a non-enumerated notice requirement under CWA section 505, the Askins court correctly reasoned that, had Congress intended the citizen suit to be all encompassing, it would have permitted suit for all violations of the Act, rather than going to great lengths to clearly specify limited circumstances giving rise to a third-party claim. Using this very reasoning, this Court has similarly construed CWA section 505 to disallow a suit seeking to enforce the terms or conditions of permits issued under CWA section 404, even though the failure to obtain a required section 404 permit is enforceable in a CWA citizen suit. In Northwest Environmental Defense Center v. U.S. Army Corps of Engineers (NEDC), 118 F. Supp. 2d 1115, 1117-19 (D. Or. 2000), this Court dismissed a citizen suit seeking to enforce the terms and conditions of CWA section 404 permits issued by the U.S. Army Corps of Engineers. The Court closely parsed the plain language in CWA subsection 505(f) and found no reference to the conditions of permits issued under section 1344 (i.e., section 404). In addition, the Court observed that Congress did expressly allow a citizen suit to enforce (. . . continued) certification. See Or. Nat. Desert Ass’n v. Dombeck, 172 F.3d 1092, 1095 (9th Cir. 1998). While holding that a section 401 certification was not required in situations involving only non- point source discharges, the Court rejected the defendant’s characterization of the statute to allow only enforcement of the conditions of the certification, not the certification requirement itself, and suggested that “the statute was not so limited.” Id. However, the reference to the enforceability of certification conditions was clearly dicta, as the Court had no occasion to decide the issue because there were no certification conditions to enforce. . Case 3:16-cv-01644-SI Document 7 Filed 09/30/16 Page 16 of 26 Page 11 - PORTLAND GENERAL ELECTRIC’S MOTION TO DISMISS 88533458.1 0032758-00173 the conditions of a section 402 NPDES permit under CWA subsection 505(f)(6). Based on this analysis, the Court held that the conditions of a section 404 permit were not enforceable under the citizen suit provision. The Court explained that the plain statutory language found in subsection 505(f) must be followed, because Congress must have meant what it so explicitly said. See NEDC, 118 F. Supp. 2d at 1118. The Court further explained that “there are no implied private causes of action under the CWA; the court therefore has no authority to read into subsection (f)(6) a definition which would include permits issued by the Corps.” Id. (citing Middlesex Cty. Sewerage Auth. v. City of Portland, 453 U.S. 1, 15-19 (1981)).5 In light of Congress’ precision in identifying actionable claims under CWA subsection 505(f), it is clear that, while Congress decided to allow citizens to enforce a federal permit or license applicant’s obligation to obtain a section 401 certification, it did not authorize citizens to enforce the conditions that a certifying state included therein. Because PGE satisfied its obligation to obtain a certification (Complaint at ¶ 20), this Court should follow the compelling reasoning in NEDC and dismiss this case. 2. Section 401 Certification Conditions Are Enforceable Only as Conditions of the Federal License or Permit into Which They Are Incorporated CWA section 401 requires the applicant for a federal permit or license to obtain a state certification that the discharge associated with the licensed or permitted activity will comply 5 Outside the Ninth Circuit, a federal court in Indiana allowed a section 505 suit to enforce CWA section 401 conditions, but nothing in the decision indicates that the pro se defendant in that case argued that the suit was impermissible. See Stillwater of Crown Point Homeowner’s Ass’n v. Stiglich, 999 F. Supp. 2d 1111, 1125, 1128 (N.D. Ind. 2014). The decision did not address the issues raised in this motion, did not parse the language Congress carefully crafted in defining the subset of “effluent limitations and other limitations” enforceable under section 505, and incorrectly referred to and treated the certification requirement as a “permit”—a result Congress clearly did not intend. See infra § III.B.2. Case 3:16-cv-01644-SI Document 7 Filed 09/30/16 Page 17 of 26 Page 12 - PORTLAND GENERAL ELECTRIC’S MOTION TO DISMISS 88533458.1 0032758-00173 with specified sections of the CWA. 33 U.S.C. § 1341(a)(1). The obligation runs to the applicant and is satisfied once that certification is issued and provided to the federal licensing or permitting agency. Id. Instead of treating a section 401 certification as an enforceable document in and of itself, Congress made the issuance of a certification a condition precedent to the issuance of a federal permit or license and required any certification conditions to be included in the permit or license. See 33 U.S.C. § 1341(a)(1), (d); Ginsberg Decl., Ex. B at 1 ("Upon [FERC] issuance of a new license… [PGE and CTWS] shall comply with the following § 401 conditions…") (emphasis added). Any terms conditioning the section 401 certification may therefore be enforced by the federal licensing or permitting agency once they are included in the license or permit. In this instance, the DEQ certification conditions incorporated in the FERC license are fully enforceable by FERC under the FPA. See 16 U.S.C. § 823b. More specifically, as set forth in CWA section 401(a)(1): Any applicant for a Federal license or permit to conduct any activity. . . which may result in any discharge into the navigable waters, shall provide the licensing or permitting agency a certification from the State in which the discharge originates. . . that any such discharge will comply with the applicable provisions of sections 1311, 1312, 1313, 1316, and 1317 of this title. . . . No license or permit shall be granted until the certification required by this section has been obtained or has been waived. . . . No license or permit shall be granted if certification has been denied by the State. . . . 33 U.S.C. § 1341(a)(1). Moreover, any conditions placed on the certification “shall become a condition on any Federal license or permit subject to the provisions of this section [401].” 33 U.S.C. § 1341(d); see also Am. Rivers, Inc. v. FERC, 129 F.3d 99, 108 (2d Cir. 1997) (establishing that FERC must incorporate the terms of any section 401 certification into its license and that FERC has the authority to enforce those terms). Case 3:16-cv-01644-SI Document 7 Filed 09/30/16 Page 18 of 26 Page 13 - PORTLAND GENERAL ELECTRIC’S MOTION TO DISMISS 88533458.1 0032758-00173 The certification by itself, however, has no legal effect under the CWA. It is simply a statement from the relevant state that the discharge that may result from the activity being federally licensed or permitted will not violate defined requirements of the CWA. 33 U.S.C. § 1341(a)(1). A certification alone does not and cannot authorize or regulate any activity. It operates only through a federal license or permit by (1) allowing the federal license or permit to be issued and (2) dictating some of the conditions of the license or permit. While not defined in the Act, the word “certification” is defined by Black’s Law Dictionary (5th ed. 1981) as “the formal assertion in writing of some fact.” In contrast, Black’s defines the word “license” as “the permission by competent authority to do an act which, without such permission, would be illegal,” and the word “permit” as “any document which grants a person the right to do something.” See, e.g., Columbia Riverkeeper v. U.S. Coast Guard, 761 F.3d 1084, 1092-93 (9th Cir. 2014) (deciding an analogous issue using Black’s Law Dictionary to distinguish between a license and a “recommendation,” and concluding that a Coast Guard “recommendation” regarding the suitability of the Columbia River for marine traffic associated with a FERC project was neither enforceable on its own, nor judicially reviewable). This careful wording of the CWA demonstrates that Congress intended that a “certification” under CWA section 401 would function very differently from an NPDES “permit” issued under section 402. For example, there may be situations where a federal licensing or permitting agency would, after receiving a section 401 certification, decline to issue the license or permit. Such a decision may arise where the state’s certification conditions would intrude upon the federal agency’s powers or would otherwise conflict with the federal statutory scheme invoked. See Am. Rivers, 129 F.3d at 111-12 (emphasizing that FERC may protect its authority by “refusing to issue a license which, as conditioned [under CWA section 401], Case 3:16-cv-01644-SI Document 7 Filed 09/30/16 Page 19 of 26 Page 14 - PORTLAND GENERAL ELECTRIC’S MOTION TO DISMISS 88533458.1 0032758-00173 conflicts with the [Federal Power Act]”). In those situations, Congress understood that it would make no sense to enforce the certification conditions because the activity sought to be licensed would not go forward. Similarly, a state may add or modify certification conditions after a federal license or permit is issued or after the one-year deadline for acting on a certification request. Under the CWA, such added or modified conditions are not automatically incorporated into the federal license or permit. See Airport Cmtys. Coal. v. Graves, 280 F. Supp. 2d 1207, 1214-18 (W.D. Wash. 2003) (refusing to require Corps of Engineers to include in its CWA section 404 permit certification conditions added on appeal of the certification but more than one year after the request for certification). If such additional or modified certification conditions were directly enforceable under the CWA, including through a citizen suit, the holder of the license or permit could be subject to conflicting conditions and requirements. In short, Congress’ decision to incorporate section 401 certification conditions into federal licenses and permits—so that they are enforceable in the same manner as the other conditions of those federal licenses and permits—demonstrates its intent to disallow enforcement of those conditions under the CWA, including through CWA citizen suits. 3. The CWA Does Not Give EPA or the States the Authority to Enforce Section 401 Certification Conditions Congress’ intent to disallow citizens from enforcing the conditions of a section 401 certification, divorced from the federal license in which they are included, is further confirmed by the absence of any authority under the CWA for EPA or states to enforce certification conditions. See, e.g., In re Rufener Constr., Inc. 53 F.3d 1064, 1067 (9th Cir. 1995) (“When we look to the plain language of a statute in order to interpret its meaning, we do more than view Case 3:16-cv-01644-SI Document 7 Filed 09/30/16 Page 20 of 26 Page 15 - PORTLAND GENERAL ELECTRIC’S MOTION TO DISMISS 88533458.1 0032758-00173 words or sub-sections in isolation. We derive meaning from context, and this requires reading the relevant statutory provisions as a whole.”). EPA’s authority to enforce the CWA is specified primarily in CWA section 309, which provides: Whenever . . . the Administrator [of EPA] finds that any person is in violation of section 1311, 1312, 1316, 1317, 1318, 1328 or 1345 of this title [the CWA], or is in violation of any permit condition or limitation implementing any of such sections in a permit issued under section 1342 [an NPDES permit] . . . or . . . in a permit issued under section 1344 of this title by a State, he shall issue an order requiring such person to comply with such section or requirement, or he shall bring a civil action in accordance with subsection (b) of this section. 33 U.S.C. § 1319(a)(3). Subsection 309(b) provides that “[t]he Administrator [of EPA] is authorized to commence a civil action for appropriate relief . . . for any violation for which he is authorized to issue a compliance order under subsection (a) of this section.” 33 U.S.C. § 1319(b). And subsection 309(c) provides criminal penalties for violations of section 1311, 1312, 1316, 1317, 1318, 1321(b)(3), 1328, or 1345 of this title [the CWA], or any permit condition or limitation implementing any of such sections in a permit issued under section 1342 [an NPDES permit] . . . or any requirement imposed in a pretreatment program approved under section 1342(a)(3) or 1342(b)(8) of this title or in a permit issued under section 1344 of this title by the Secretary of the Army or by a State. 33 U.S.C. § 1319(c)(1)(A). Notably omitted from these subsections is any reference to CWA section 401 (33 U.S.C. § 1341), much less a reference to section 401 certification conditions. Moreover, no other provision of the CWA, including section 401, authorizes EPA or a state to bring any kind of action to enforce the conditions of a section 401 certification. As a result, EPA and the state have no authority under the CWA to enforce the conditions of a section 401 certification. Case 3:16-cv-01644-SI Document 7 Filed 09/30/16 Page 21 of 26 Page 16 - PORTLAND GENERAL ELECTRIC’S MOTION TO DISMISS 88533458.1 0032758-00173 The absence of any EPA or state authority to enforce certification conditions under the CWA is explained by the absence of any obligation under section 401 to comply with certification conditions. By requiring the conditions to be incorporated into the federal license or permit for the activity certified, Congress intended instead that the conditions would be enforceable under the relevant federal statutes for that license or permit, in the same manner and to the same extent as the other license or permit conditions. In this instance, the DEQ certification conditions have been incorporated into the FERC license for the Project, Complaint at ¶ 20, and are enforceable under the FPA. See 16 U.S.C. §§ 823b, 825l(a)-(b); see generally Ginsberg Decl., Ex. A at ¶¶ 18-80 (establishing committees comprised of representatives of parties to the licensing process—including environmental groups that intervened in licensing proceedings and DEQ—to resolve water quality certification and fish issues through a dispute resolution process overseen by FERC). 4. Congress Did Not Intend to Provide Citizens with CWA Enforcement Powers Greater Than Those Granted to EPA or States Congress reserved to the states the primary authority to “prevent, reduce, and eliminate pollution.” 33 U.S.C. §1251(b). In contrast, “Congress . . . provided citizens a limited role in the enforcement of the Act.” Black Warrior Riverkeeper, Inc. v. Black Warrior Minerals, Inc., 734 F.3d 1297, 1298 (11th Cir. 2013); Askins, 809 F.3d at 875-76 (emphasizing need to respect the limited nature of citizen suits under the CWA). By designing the CWA to make the states and EPA its primary enforcers, Congress ascribed to third-party “citizens” the role of a “backup.” Askins, 809 F.3d at 875. Accordingly, the CWA citizen suit was designed to permit citizens to enforce the Act “when the responsible agencies fail or refuse to do so.” S.F. Baykeeper v. Cargill Salt Div., 481 Case 3:16-cv-01644-SI Document 7 Filed 09/30/16 Page 22 of 26 Page 17 - PORTLAND GENERAL ELECTRIC’S MOTION TO DISMISS 88533458.1 0032758-00173 F.3d 700, 706 (9th Cir. 2007). As the Supreme Court explained in Gwaltney of Smithfield, Ltd v. Chesapeake Bay Foundation, Inc., the CWA citizen suit is meant to supplement rather than to supplant governmental action. The legislative history of the Act reinforces this view of the role of the citizen suit. The Senate Report noted that “[t]he Committee intends the great volume of enforcement actions [to] be brought by the State,” and that citizen suits are proper only “if the Federal, State, and local agencies fail to exercise their enforcement responsibility.” 484 U.S. 49, 60-61 (1987) (quoting S. Rep. No. 92-414 at 64 (1971)). The Court rejected an interpretation of the scope of the citizen suit provision that “would change the nature of the citizens’ role from interstitial to potentially intrusive.” Id. For these reasons, Congress prohibited would-be private attorney generals from filing a citizen suit until 60 days after providing notice of the alleged violations to EPA, the state, and the alleged violator. 33 U.S.C. § 1365(b)(1)(A). The point of the notice requirement is two-fold: (1) to allow the discharger to cure any violations and (2) to allow EPA and the state to step in and resolve the non-compliance. See, e.g., Gwaltney, 484 U.S. at 60. The Ninth Circuit addressed this specifically in Washington Trout v. McCain Foods, Inc., explaining that: the purpose of giving a sixty-day notice is to allow the parties time to resolve their conflicts in a nonadversarial time period [and to] alert[] the appropriate state or federal agency, so administrative action may initially provide the relief the parties seek before a court must become involved. 45 F.3d 1351, 1354 (9th Cir. 1995); see also Walls v. Waste Res. Corp., 761 F.2d 311, 316-17 (6th Cir. 1985) (same). As shown in the preceding section, however, neither EPA nor the state has authority under the CWA to enforce the conditions of a CWA section 401 certification. Congress most assuredly did not intend to grant private citizens the authority to enforce something under the Case 3:16-cv-01644-SI Document 7 Filed 09/30/16 Page 23 of 26 Page 18 - PORTLAND GENERAL ELECTRIC’S MOTION TO DISMISS 88533458.1 0032758-00173 CWA that neither EPA nor a state can enforce. Askins, 809 F.3d at 875 (refusing to interpret section 505 to grant citizens greater enforcement authority than EPA). Any other interpretation would lead to an absurd result because it would be pointless to give EPA and the state notice of a citizen’s intent to bring an enforcement claim that neither EPA nor the state could pursue. In Gwaltney, the Supreme Court rejected an interpretation of the scope of the CWA citizen suit provision that would have made the 60-day notice superfluous. See Gwaltney, 484 U.S. at 60 (rejecting an interpretation that CWA citizen suits could be based on “wholly past violations” because that would make the required 60-day notice to the violator merely “gratuitous”); see also Chubb Custom Ins. Co. v. Space Sys./Loral, Inc., 710 F.3d 946, 958 (9th Cir. 2013) (cautioning against adopting statutory interpretation leading to absurdity). Not only would this result in an irrational outcome that would vitiate the very purpose of the 60- day notice requirement to EPA and the state, it would also transform the nature of the citizen suit provision from one that is “interstitial” to one that is “intrusive,” a result that the Supreme Court held Congress could not have intended. Gwaltney, 484 U.S. at 60-61. IV. CONCLUSION Congress was explicit about the limited causes of action it authorized under the CWA citizen suit provision, and it chose not to authorize a citizen suit to enforce the conditions of a certification under CWA section 401. By instead requiring such conditions to be incorporated into the federal license or permit for which the certification was issued, Congress chose to make the conditions enforceable under the relevant federal statutes for that license or permit, not under the CWA. Accordingly, PGE respectfully requests that DRA’s suit be dismissed with prejudice for lack of subject matter jurisdiction. In the absence of any authority to bring a citizen suit for Case 3:16-cv-01644-SI Document 7 Filed 09/30/16 Page 24 of 26 Page 19 - PORTLAND GENERAL ELECTRIC’S MOTION TO DISMISS 88533458.1 0032758-00173 alleged violations of the conditions of a CWA section 401 certification, this Court cannot remedy the violations alleged in DRA’s Complaint. Fed. R. Civ. P. 12(b)(1). DATED: September 30, 2016. STOEL RIVES LLP s/ Beth S. Ginsberg BETH S. GINSBERG, OSB # 070890 MICHAEL R. CAMPBELL, OSB # 870016 Telephone: (206)624-0900 Attorneys for Defendant Case 3:16-cv-01644-SI Document 7 Filed 09/30/16 Page 25 of 26 Page 20 - PORTLAND GENERAL ELECTRIC’S MOTION TO DISMISS 88533458.1 0032758-00173 CERTIFICATE OF SERVICE I hereby certify that on September 30, 2016, I filed a true and correct copy of the foregoing document with the Clerk of the Court for the United States District Court of Oregon by using the CM/ECF system. Participants in this Case No. 16-cv-01644-SI; who are registered CM/ECF users will be served by the CM/ECF system. s/ Beth S. Ginsberg Beth S. Ginsberg Case 3:16-cv-01644-SI Document 7 Filed 09/30/16 Page 26 of 26