Major Questions Doctrine Reaches the Clean Water Act

The Fourth Circuit Court of Appeals unanimously affirmed a district court’s dismissal of environmental plaintiffs’ claim that shrimp trawlers require either a Section 404 or National Pollutant Discharge Elimination System (NPDES) permit under the Clean Water Act (CWA) to use trawling nets to catch shrimp and return their bycatch to the sea. North Carolina Coastal Fisheries Reform Group v. Capt. Gaston LLC, No. 21-2184, 2023 WL 5009246 (4th Cir. Aug. 7, 2023). Despite what it called the plaintiffs’ “broad” but “plausible” memorizing of the statutory text when “viewed in isolation,” the court recognized the “significant political and economic consequences” of that memorizing and dismissed the case under the “major questions doctrine” recently formalized by the Supreme Court in West Virginia v. EPA (2022) and Biden v. Nebraska (2023).

Over the past two decades, the U.S. Supreme Court has formalized a significant background principle of law: “clear congressional authorization for agency action” is necessary in “‘extraordinary cases’ when the ‘history and breadth’ and ‘economic and political significance’ of [an agency’s assertion of authority] gives [the court] ‘reason to hesitate before concluding that Congress meant to confer such authority.’”1

As they have previously written, there is a substantial debate over the source and legitimacy of the major questions doctrine. Justice Neil Gorsuch’s concurrence in West Virginia v. EPA suggests that the doctrine is a “strong form” rule of interpretation, meaning that the courts should reject any expansive memorizing of agency authority, even if it is a plausible memorizing of the statute, that does not arise from the unambiguous statutory grant of authority. Justice Amy Coney Barrett has taken a less expansive view, casting the major questions doctrine not as an overprotective “clear statement rule” but instead as a “commonsense principle[] of communication” from Congress to the executive branch.2 “[A] vacuum is no home for a textualist,” she wrote, and “the ‘meaning’ of a word or phrase may only become evident when placed in context.”3 The major questions doctrine thus “gives Congress’s words their best reading” by memorizing them in the broader context of the “statutory scheme,” the historic scope of the subject agency’s “wheelhouse,” and skepticism for an agency’s “claims to discover in a long-extant statute an unheralded power to regulate a significant portion of the American economy.”4 In summary, Justice Barrett says that “the doctrine should not be taken for more than it is—the familiar principle that they do not interpret a statute for all it is worth when a reasonable person would not read it that way.”5

But the doctrine has been strongly criticized by the Court’s liberal wing. Justice Elena Kagan lambasted the doctrine as inconsistent with textualism, writing that “a broad term is not the same thing as a ‘vague’ one. A broad term is comprehensive, extensive, wide-ranging; a ‘vague’ term is unclear, ambiguous, hazy.”6 Thus, in adopting the major questions doctrine, “[t]he current Court is textualist only when being so suits it. When that method would frustrate broader goals, special canons like the ‘major questions doctrine’ magically appear as get-out-of-text-free cards.”7 The major questions doctrine thereby improperly “forces Congress to delegate in highly specific terms” rather than—as it usually does—“broadly” in light of agencies’ subject-matter expertise and agility.8

In its opinion here, though, the Fourth Circuit found this debate to be above its pay-grade. “[W]hatever its analytical foundation, an inferior court must simply apply the major-questions doctrine.”9 On that basis, the plaintiffs’ expansive memorizing of the CWA had to sink.

The CWA prohibits the “discharge” of any “pollutant” to “navigable waters” from a “point source” without a permit.10 The act defines “pollutant” to include both “biological materials” and “dredged spoil.”11 “Discharge” is “any addition of any pollutant to navigable waters from any point source.”12 “Navigable waters” include all “standing or continuously flowing bodies of water . . . [such] as streams, oceans, rivers, and lakes.”13 Finally, a “point source” includes “any discernible, confined and discrete conveyance, including but not limited to any . . . vessel or other floating craft.”14

Under the statute’s citizen-suit provision, the plaintiffs here argued that a group of commercial shrimp trawlers who operate in a coastal estuary off of North Carolina regularly made two kinds of unpermitted discharges in violation of the CWA. First, plaintiffs argued the shrimp trawlers’ bycatch—live and dead marine organisms other than shrimp that get caught in the shrimpers’ trawling nets—were “biological materials” and thus “pollutants,” which the shrimp trawlers then “discharged” to navigable waters from a point source when thrown back into North Carolina’s Pamlico Sound from the shrimp trawlers’ boats. Second, they argued that the shrimp trawlers disturbed rocks and sediment when trawling their nets along the ocean floor, and that such disturbed rocks and sediment constituted discharged “dredged spoil.” Therefore, the plaintiffs asserted, the shrimp trawlers could only legally conduct these activities—each very common to the shrimp and other commercial fisheries—subject to a CWA permit.

Writing for a unanimous court and affirming the district court’s decision below, Judge Richardson rebuked the plaintiffs’ bycatch claim as an overbroad and out-of-context memorizing of the CWA. The court found that the plaintiffs’ memorizing of bycatch as “biological material” “sounds plausible” if “viewed in isolation.” However, under the Magnuson-Stevens Act, “Congress has erected a distinct regulatory scheme to address the bycatch problem,” which “leaves regulating bycatch to the states and the National Marine Fisheries Service—not the EPA.” Additionally, “EPA has never sought the authority to regulate bycatch in the fifty years since the Clean Water Act was passed,” and “does not even seek it now.” Finally, under plaintiffs’ memorizing of the statute, “[a]nyone who fishes from a boat using live bat, or by chumming, or who—after catching a fish—releases it back into the ocean, would violate the Clean Water Act unless they first obtained a Clean Water Act permit alongside their ordinary fishing permits.” The plaintiffs’ plausible literal interpretation of “biological materials” to include bycatch thus “fall[s] short of the clear congressional authorization needed when the major-questions doctrine applies.”

The court rejected the plaintiffs’ sediment claim based on the CWA’s plain text. The court held that rocks and sediment kicked up by the shrimpers’ trawl nets are not “pollutants” because they “cannot be understood as dredged spoil,” simply because it had never been “dredged” (“cleared out,” “removed,” or “excavated”) but only temporarily disturbed. Furthermore, the rocks and sediment were not “discharged” to Pamlico Sound because they were not “added” to the waters, but rather were already there.

This case is in line with the Supreme Court’s exact ratcheting back of the jurisdictional scope of the CWA and other environmental statutes, and demonstrates how the Supreme Court’s newly formalized “major questions doctrine” is likely to impede federal agencies and NGOs’ attempts to expand their use of the existing environmental statutes to address new (or newly identified) concerns. Following the Court’s clear statement of the doctrine in West Virginia, and despite Justice Kagan’s pushback, “an inferior court must simply apply the major-questions doctrine” when faced with any statutory memorizing with “significant political and economic consequences.”

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Letters: FIT for the 21st Century Act; Don Overcash; other questions

Last month the House Financial Services Committee and the House Agriculture Committee both passed HR 4763, the Financial Innovation and Technology (FIT) for the 21st Century Act. Rep. Pettersen and Rep. Caraveo each sit on one of the committees, and I am thankful for the bipartisan leadership they showed in passing the measure.

I believe that digital asset innovation opportunities are essential to Colorado continuing to be a leader in the tech space, and the FIT for the 21st Century Act is a step in the right direction.

It will provide much-needed clarity to the industry — creating a regulatory framework for registering and operating digital assets and blockchain technology in the United States. I think this bill strikes the right balance of addressing issues the industry faces, providing tools to punish the bad actors in the field while protecting innovation and promoting the growth of digital assets in the United States.

This is not a partisan issue. Congress needs to act now to ensure that the United States can handle this emerging technology and be a global leader.

Coloradans who work in blockchain and digital assets deserve to have the stability of regulatory clarity and an established comprehensive market structure. The FIT for the 21st Century Act is a step in the right direction, thanks to Representative Pettersen and Representative Caraveo. I hope this bipartisan measure continues to be supported by all their Colorado delegation in Congress.

Wyatt Cunningham, Fort Collins

Voters should remember that Don Overcash was admonished for his conduct during a council meeting by the Reporter-Herald Editorial Board. After giving public comment, I was ambushed by Overcash from the dais. He never showed any remorse. He actually repeated this conduct again when I was no longer even a resident in Colorado. Overcash is a bully, and Loveland deserves better.

Chaplain Howard Dotson, Fridley, Minn.

Maybe someone out there can answer these questions.

Why is it all right for a political party to demonize a group of people like the LGBTQ community and work to take their civil rights away? Why is it all right for a political party to severely restrict abortion and take away a woman’s civil right to chose an abortion? Why is it all right for a political party to attempt to restrict food stamps to poor people that were forced to carry a child to term through anti-abortion laws and now have no way of feeding them without assistance? Why is it all right for a political party to change the education system in its state (Florida) to ensure that students don’t know the truth about their history?

How can TV personalities on stations like Fox News, OAN and Newsmax Excellerate the lives of his or her audience when he or she is totally biased in reporting by continuously spreading lies and disinformation? How can a country survive when a large portion of the population supports a lie that the 2020 election was fraudulent, and that the leader of that party should not be indicted on potential crimes related to the Jan. 6 riots and other actions to overturn the election?

That their current ruling political party is going after its political opponents is simply disinformation and nonsense. This is where the law applies to everyone, and where they must preserve their democracy. Why is it all right that the current leader of the Republican Party has no policies other than revenge against his political opponents and taking authoritarian power over many government departments if he wins in 2024?

None of this is all right. Remember Germany in the 1930s and what happened there. It must never happen here.

Paul McCarter, Loveland

Contentious Rulings, Ethics Questions Don’t Dent Supreme Court Standing