Major Questions Doctrine Reaches the Clean Water Act
Shrimp Trawlers Don’t Need Discharge Permits, Fourth Circuit Rules
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” reading of the statutory text when “viewed in isolation,” the court recognized the “significant political and economic consequences” of that reading 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).
- For the first time, a federal court has expressly invoked the major questions doctrine to limit the jurisdictional scope of the CWA.
- The decision underlines federal courts’ increasing willingness to limit the scope of, and agencies’ regulatory jurisdiction under, environmental statutes like the CWA. absent a clear and specific authorizing statement by Congress.
- As a result, commercial fishers need not obtain a Section 404 or NPDES permit, in addition to complying with existing federal and state regulations under the Magnuson-Stevens Act, when employing trawling methods or returning bycatch.
Major Questions’ Rising Tide
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 we 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 reading of agency authority, even if it is a plausible reading 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 reading 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 we 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 reading of the CWA had to sink.
Plaintiffs Bait the Statutory Hook
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.
The Fourth Circuit Doesn’t Take the Bait
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 reading of the CWA. The court found that the plaintiffs’ reading 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’ reading 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.
Future Course of the Major Questions Doctrine
This case is in line with the Supreme Court’s recent 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 reading with “significant political and economic consequences.”
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1 N.C. Coastal Fisheries Reform Grp. v. Capt. Gaston LLC, No. 21-2184, 2023 WL 5009246 at *2 (4th Cir. Aug. 7, 2023) (quoting West Virginia v. EPA, 142 S. Ct. 2587, 2608 (2022)).
2 Biden v. Nebraska, 143 S. Ct. 2355, 2380 (2023) (Barrett, J., concurring).
3 Id. at 2382 (emphasis on original).
4 Id. at 2379-83.
5 Id. at 2384.
6 West Virginia, 142 S. Ct. at 2630 (Kagan, J. dissenting).
7 Id. at 2641.
8 Biden v. Nebraska, 143 S. Ct. at 2397(Kagan, J. dissenting).
9 N.C. Coastal Fisheries, 2023 WL 5009246, at *2 n.5.
10 33 U.S.C. § 1311(a).
11 33 U.S.C. § 1362(6).
12 33 U.S.C. § 1362(12).