The Clean Water Act (“CWA”) regulates the discharge of certain “pollutants” into waters of the United States (“WOTUS”). Should shrimp trawlers be subject to the regulatory framework under the CWA when they return “bycatch” (unintentionally captured marine life) back into a water of the United States, or when their trawl nets churn up rocks and sand on the ocean floor? Not in the Fourth Circuit, as the United States Court of Appeals recently held in North Carolina Coastal Fisheries Reform Group v. Capt. Gaston LLC.
This is perhaps an unsurprising conclusion. The CWA is, after all, intended to regulate point-source pollution discharges into WOTUS—and, therefore, to regulate pollution and discharges. The U.S. Environmental Protection Agency (“EPA”) defines point source pollution as “any single identifiable source of pollution from which pollutants are discharged, such as a pipe, ship or factory smokestack.” Although this definition includes “ships,” this reference is typically understood to refer to wastewater discharged from a vessel into WOTUS or soil deposited into a waterbody where it does not naturally occur. Typically, the term “point-source discharge” does not capture the return of organic materials to a waterbody or the inadvertent disruption of sedimentation already existing in the ocean.
Intuitively then, unintentional disturbances to the ocean floor, or throwing back into the ocean marine life that was, mere moments prior, a part of the waterbody, seems neither to fit the definition of “pollutant” nor the definition of a “point-source discharge” under the CWA. Nor does it seem intuitive that pre-existing rocks and sand on the water’s floor would implicate discharge permitting requirements, even though the Act defines “pollution” to include rocks and sand. None of these activities seem to fall within the traditionally understood meanings of “point-source discharge” or of a “pollutant” as articulated by Congress.
What is especially interesting in the opinion, however, is the reasoning the Fourth Circuit adopted in order to reach its otherwise intuitive conclusions. Rather than merely conduct a statutory analysis of the definitions of “pollutant” and “point-source discharge,” the Fourth Circuit relied on an arguably new—and, in some circles, controversial—principle of statutory construction: the “major questions doctrine.”
The major questions doctrine was recently invoked by the U.S. Supreme Court in 2022 in its landmark decision in West Virginia v. EPA. The question presented in West Virginia was whether the EPA can force an industry, national in scope, to change its operations (in this case effectively forcing the elimination of the use of coal-fired power plants) under the auspices of EPA’s regulatory authority of point-source air polluters. The Supreme Court held that in order to do so, EPA needed to demonstrate “clear congressional authorization” on account of the “history and the breadth of the authority that the agency ha[d] asserted, and the economic and political significance of that assertion.” EPA failed to demonstrate such authorization, and the Supreme Court therefore struck down the regulatory scheme.
In Capt. Gaston, the Fourth Circuit cited West Virginia for the principle that clear congressional authorization is required for agency action “in ‘extraordinary cases’ when the ‘history and breadth’ and ‘economic and political significance’ of the action at issue gives us ‘reason to hesitate before concluding that Congress meant to confer such authority’ to act on the agency.” Rather than rely on strained interpretation of the CWA’s definitions, the Fourth Circuit required the plaintiffs to demonstrate “clear authorization from Congress” to require CWA discharge permits for shrimp trawlers’ normal activity. The plaintiffs could not do so, and as a result the Fourth Circuit held that shrimp trawlers could not be required to obtain discharge permits under the CWA simply on account of the rocks, sand, and inadvertently-captured marine life at issue.
Notably, the actual permitting authorities under the Clean Water Act—EPA and the Army Corps of Engineers—were not parties in Capt. Gaston. The plaintiffs were a private organization and other citizens seeking to “compel EPA action.” The Fourth Circuit was doubly unwilling to adopt the plaintiffs’ interpretation of “pollution” when EPA’s authority was in doubt, and EPA itself had not taken action to assert its authority. Ultimately, such a consideration made this even more of a “major questions” case for the Fourth Circuit, which believed that adopting the plaintiff’s position would mean that EPA would be forced to regulate virtually all fishing activities, and would force EPA regulation when fishing and dredging are already regulated by other federal bodies. Indeed, for the Fourth Circuit, “[t]he economic and separation-of-powers stakes of our ruling thus mirror those at play in the other major-questions cases.”
Capt. Gaston was decided in the penumbra of the Supreme Court’s pending reevaluation of Chevron deference in Loper Bright Enterprises v. Raimondo and, therefore, at a time when federal courts are re-evaluating the deference afforded by courts to federal agency decisions and the invocation of their authority. The Supreme Court’s forthcoming decision in Raimondo may clarify the role of the “major questions” doctrine in agency deference analyses, but in any event could easily be as seminal to analyses of agency deference as Chevron itself has been for nearly 40 years. The long-term impact of Capt. Gaston will therefore depend on Raimondo. In the meantime, the wave of reductions to agency authority has at least here allowed shrimp trawlers to work without the burdens of new federal permitting.
Please join Robert El-Jaouhari for a webinar on Tuesday, August 29 at 10:00 AM as he gives a regulatory update and discusses the Chevron deference under review. He will also discuss why agency deference standards and agency rulemaking procedures matter. Register for this webinar here >>