WIDENER, Circuit Judge:
This is an appeal from a judgment of the United States District Court for the Western District of Virginia dismissing appellants' action for lack of subject matter jurisdiction. Suit was filed in the district court by the appellants, eight chemical manufacturers, who sought review
39 Fed.Reg. 9612 et seq., 40 CFR 415.
The only question presented in this appeal is whether the district courts have jurisdiction to review effluent limitations regulations issued by the Administrator to control effluent discharges from existing plants. A necessary corollary is whether the courts of appeals have jurisdiction under § 509 of the Act, 33 U.S.C. § 1369(b)(1), to review, on direct petition for review, regulations for existing plants, for if we have the jurisdiction, the district courts do not.
As the district court noted, the issue presented was largely one of first impression. Although the matter has now been considered directly or indirectly by some few courts, it is yet relatively new and we think it appropriate that we ascertain the intent of Congress in adopting the Act in its present form by looking to the language of the statute itself and its legislative history, as well as the decisions on the subject. The original Act dates from 1948, but did not assume its present form until 1972 when the then existing statutory language was extensively revised. The object of these revisions, as noted in the body of the statute itself, was and is the restoration and maintenance of the chemical, physical, and biological integrity of the nation's waters. 33 U.S.C. § 1251. This goal is to be accomplished primarily through the control of pollutants discharged into navigable waters. It should be kept in mind that the 1972 amendments changed the emphasis in the statutory scheme of water pollution control from that of regulating the quality standard of the body of water involved to regulating not only the quality standard of the body of water but also the quality of effluent discharged into the body of water. Compare the various statutes itemized in footnotes to 33 U.S.C.A. § 1251 et seq.; and see, e. g., Senate Report 92-214, dated October 28, 1971; House Report 92-911 dated March 11, 1972; U.S.Code Cong. & Admin. News, p. 3668; CPC International v. Train, 515 F.2d 1032, 1034-36 (8th Cir. 1975).
In the course of adopting the 1972 amendments, a great deal of attention
Central to the statutory framework within which the permit system is to operate are the regulations providing for or establishing effluent limitations. The EPA contends that the Act contemplates that the Administrator promulgate actual effluent limitations which will be uniformly applied in issuing permits under the Act.
The Administrator asserts that he has combined his rulemaking authority under this section with that specifically provided for under § 304(b), 33 U.S.C. § 1314(b), to arrive at the comprehensive set of regulations which are here under review. Since § 509 of the Act states that actions of the Administrator under § 301 are directly reviewable by courts of appeals, the EPA asserts that the district court was correct in dismissing the complaint for lack of jurisdiction.
Appellants, on the other hand, while not challenging the right of this court to directly review any action of the Administrator under § 301, contend that he lacks authority to issue effluent limitation regulations under the provisions of that section. They argue that the language of § 301 requires only that effluent limitations be "achieved," not that they be independently established and achieved. Thus, according to their interpretation of the Act, § 301 merely sets forth the statutory objectives to be attained, and the means of actually reaching these objectives are set out in § 304 of the Act, 33 U.S.C. § 1314, which states in part:
The challenged regulations must, therefore, according to appellants, be deemed to have been issued under § 304(b) and neither under § 301 nor a combination of § 301 and § 304(b) as the EPA asserts. Based upon this interpretation of the statutory provisions in issue, appellants contend that review in the courts of appeals pursuant to § 509(b)(1) is not available and that the action was properly brought before the court below in accordance with the provisions of the Administrative Procedure Act, 5 U.S.C. § 701 et seq. As a corollary to this construction, appellants seek a ruling that the effluent limitations for existing point sources issued by EPA are invalid because they say the Administrator had no authority to issue them under § 301, and could only have issued them under § 304(b).
The case of CPC International, Inc. v. Train, 515 F.2d 1032 (8th Cir. 1975), appears to agree with appellants' interpretation of the statutory provisions involved. In that case, the court stressed the fact that § 301 provides the Administrator with no separate power to promulgate effluent limitations for existing point sources. The court noted,
Thus, the court concluded that jurisdiction to review such actions of the EPA, which were deemed to have been taken in accordance with § 304(b), did not lie in the courts of appeals because the EPA could not promulgate effluent limitations for existing sources by regulations under § 301.
The court below, on the other hand, ruled that the effluent limitations standards at issue were promulgated pursuant
This or related questions have also been considered by several other courts faced with challenges to EPA regulations under this statute. The Third Circuit, in American Iron and Steel Institute v. EPA, 526 F.2d 1027 (3d Cir. 1975), disagreed with the reasoning of the Eighth Circuit in CPC and concluded that the Administrator was authorized to issue single number effluent limitations under § 301. The jurisdictional question was apparently not raised there. That court considered such effluent limitations as a uniform ceiling, the maximum amount of pollutant in effluent discharge which is permissible. And it also gave effect to § 304 by requiring compliance with it by EPA in preparing meaningful guidelines and addressing statutory factors for application to industry. Since it found § 304 was not complied with by EPA, the court set aside the issued effluent limitations because the limitations might have been less stringent if the statute (§ 304) had been followed in issuing the guidelines and consideration of statutory and individual factors.
In American Meat Institute v. Environmental Protection Agency, 526 F.2d 442, No. 74-1394 (7th Cir. 1975), the jurisdictional problem was also considered. The court held it had jurisdiction for it considered the effluent limitations were issued under § 301 of the Act. The court stated "the most natural reading of the language of the Act is that § 301 is a source of authority to promulgate effluent limitations, independent of the § 402 permit procedure." This part of the holding is then quite similar to that of the district court in our case. The Seventh Circuit also depended on Train v. National Resources Defense Council, 421 U.S. 60, 95 S.Ct. 1470, 43 L.Ed.2d 731 (1975); gave weight to the EPA's construction of the statute; and found it was "sufficiently reasonable to preclude . . . [the court] from substituting its judgment for that of the Agency." We express no opinion as to the validity of this latter proposition in the context of a court determining its own jurisdiction which, of course, is conferred by Congress, Lockerty v. Phillips, 319 U.S. 182, 187, 63 S.Ct. 1019, 87 L.Ed. 1339 (1943), and we need not in order to arrive at our conclusion.
In American Petroleum Institute v. Train, 7 ERC 1795 (D.Colo.1974), the court concluded it lacked jurisdiction since the challenged regulations were issued under § 301 as well as § 304, and review should be had in the courts of appeals "even should the Administrator have interpreted his authority under [§ 301] incorrectly." Finally, the court, in American Paper Institute v. Train, 381 F.Supp. 553 (D.D.C.1974), likewise found it lacked jurisdiction to review the challenged regulations even if they were guidelines under § 304 for in that event they would be "only an aid in establishing effluent limitations and since limitations, not guidelines, comprise the standards of performance for the issuance of permits, plaintiff [could not] be heard to complain that it [was] `adversely affected or aggrieved' by guidelines, the criteria of Section 10(a) of the APA."
We are impressed, as was the court below, by the express language of § 509(b)(1)(E) which refers to "review of the Administrator's action . . . in approving or promulgating any effluent limitation or other limitation under section 301, 302, or 306." It is significant to note that section 306 provides for the issuance of regulations "establishing Federal standards of performance for new sources [of pollutants]." 33 U.S.C. § 1316 (emphasis added). Section 301, by way of contrast, is concerned with existing sources.
While there is little legislative history relating to § 509, it is highly significant that the committee reports make no mention of any division of judicial review. It is clear that the House and Senate conferees disagreed over whether there should be judicial review in the district courts or the courts of appeals. Yet, there is no indication of any compromise agreement providing for divided review of the EPA standards. To the contrary, the Senate appears to have prevailed on this point. Leg. History (Conference Report), p. 330. A literal reading of the Conference Report without reference to the statute supports the position we take here.
In the House Report discussing judicial review, it was noted that "with the number and complexity of administrative determinations that the legislation requires there is a need to establish a clear and orderly process for judicial review." Although the House Bill originally provided for review in the district courts, this report indicates that Congress did not intend for the actions of the Administrator to be subjected to the complexities inherent in a system of review divided between different courts. Rather, it appears to have been its desire that administrative actions be reviewable, but in a manner not likely to impede
The EPA contends that, this being the intent of Congress, § 301 must be viewed as authorizing the promulgation of effluent limitation regulations. Otherwise, they argue, § 509's reference to § 301 would be meaningless. We are not persuaded that this conclusion must necessarily follow in order for this court to find jurisdiction under § 509.
Even if § 301 merely sets out the technological objectives to be attained under the Act, courts of appeals may properly assume jurisdiction to review actions of the Administrator in issuing regulations to achieve these objectives. If § 301 is to be viewed in the manner advocated by the appellants, then § 304(b) must necessarily be deemed the key to the attainment of the objectives set forth in § 301. Thus, to obey the mandate of § 301, "guidelines for effluent limitations" must be promulgated under § 304(b). Construed in this light, any action taken by the Administrator under § 304(b) should properly be considered to be pursuant to the provisions of § 301 and, therefore, reviewable by this court under § 509.
By enacting § 509(b), Congress established a statutory plan to be followed to obtain judicial review of agency actions under the Act. Only those courts upon which Congress has bestowed authority have jurisdiction. See Whitney Bank v. New Orleans Bank, 379 U.S. 411, 420, 422, 85 S.Ct. 551, 13 L.Ed.2d 386.
The district court correctly held it had no jurisdiction. None is conferred upon it by the statute involved. In federal courts, "[j]urisdiction is essentially the power conferred by Congress to decide a given type of case one way or the other." Hagans v. Lavine, 415 U.S. 528, 538, 94 S.Ct. 1372, 1379, 39 L.Ed.2d 577. In its exercise of its statutory jurisdiction, this court determines whether the Administrator acted within his statutory authority.
Since we are of opinion that Congress has conferred on the courts of appeals the power to decide the merits of this case one way or the other, and not conferred such power on the district courts, we think the judgment of the district court should be affirmed.
Accordingly, the district court was without jurisdiction, and its judgment, if not its entire opinion, is
Recognizing the classical prohibition on residents of glass houses who throw rocks, with the Third Circuit we are yet constrained to say the Act is not clear. A simple declaratory sentence, or even a phrase, or a word, could have solved this knotty question, which relates to a substantial part of the industry in the country.