Environmental Defense Center, Inc. v. United States Environmental Protection Agency

Opinion by Judge JAMES R. BROWNING; Partial Concurrence and Partial Dissent by Judge TALLMAN.

ORDER AND OPINION

ORDER

The opinion and dissent filed in this case on January 14, 2003, and published at 319 F.3d 398 are vacated. They are replaced by the Opinion and Dissent filed today.

With the filing of the new Opinion and Dissent, the panel has voted to deny the petitions for rehearing and the petition for rehearing en banc. (Judge Tallman would grant the petition for rehearing filed by *840 the Environmental Protection Agency.) The full court has been advised of the new Opinion, new Dissent, and petition for rehearing en banc. No judge has requested a vote on the petition for rehearing en banc. Fed. R.App. P. 35.

The petitions for rehearing and the petition for rehearing en banc are DENIED. The clerk is instructed not to accept for filing any new petitions for rehearing or petitions for rehearing en banc in this case.

Each party shall bear its own costs in this appeal.

OPINION

Petitioners challenge a rule issued by the United States Environmental Protection Agency pursuant to the Clean Water Act, 33 U.S.C. §§ 1251-1387 , to control pollutants introduced into the nation’s…

concurring in part and dissenting in part:

I concur in most of the majority’s opinion, but I dissent from Section II.B, which remands the Phase II Rule because its system of general permits is “arbitrary and capricious.” I believe EPA’s design of a system of general permits supported by notices of intent was a reasonable exercise of EPA’s administrative discretion. We must give deference to EPA’s interpretation of the laws it is charged with enforcing, so long as EPA’s reading of those laws is permissible. Because EPA acted reasonably in designing a National Pollutant Discharge Elimination System (“NPDES”) based on general permits and supported by NOIs, I respectfully dissent from the court’s decision to remand this portion of the Phase II Rule.

I

As the majority concedes, we evaluate EPA’s interpretation of the Clean Water Act with deference. Majority Op. 13796. If Congress’s intent is unclear as to whether a system of general permits supplemented by NOIs is allowed, we simply ask “whether EPA’s interpretation is permissible.” Ober v. Whitman, 243 F.3d 1190, 1193 (9th Cir.2001).

II

As an initial matter, then, we must ask if Congress was clear in its intent concerning the…