January 10, 2013

It really was much ado about nothing

By Damien M. Schiff Senior Attorney

On Monday, the Supreme Court ruled unanimously in Los Angeles County Flood Control District v. Natural Resources Defense Council that the Clean Water Act does not regulate the mere flow of polluted water from an upstream “improved” segment to a downstream “unimproved” segment of the same water of the United States.  The Court’s holding is practically a restatement of its holding from a few years back in South Florida Water Management District v. Miccosukee Tribe, and to that extent doesn’t change Clean Water Act law more than a jot or tittle.  (That result is consistent with my predictions on the case’s outcome.).  Recall that all the big players here—the stormwater agencies, the environmentalists, and EPA—agreed on how the legal rule should be formulated.  The disagreement instead focused on what the Ninth Cicuit actually held.

On that point, the Supreme Court, in an opinion by Justice Ginsburg, punted.  It acknowledged the District’s position that the Ninth Circuit really had held that the District should be liable for stormwater discharges even though the discharges happened within the Los Angeles and San Gabriel Rivers themselves.  The Court also acknowledged the environmentalists’ and EPA’s position, that the Ninth Circuit had merely made a record error as to where the monitoring stations were located, and hadn’t ruled contrary to Miccosukee.  But the Court said that it didn’t matter, because the end result—liability for the District on this record—was unfounded.

As if to confirm that the case really is, legally speaking, much ado about nothing, the Court expressly avoided addressing the enviromentalists’ alternative theory of liability, actually rejected by the Ninth Circuit below is resolving other claims against the District.  Specifically, the environmentalists had argued that the monitoring and enforcement provisions of the District’s stormwater permit governed the District’s liability, such that if those provisions indicated that pollutant levels in stormwater were too high, then the District would be liable, regardless of where the monitoring stations were located (in other words, irrespective of the Miccosukee question).  The Court declined to address the argument, holding that it was not within the grant of certiorari.  Arguably, the enviromentalists can press this alternative argument on remand in the Ninth Circuit.  But even assuming that it hasn’t been waived, I think it unlikely that the Ninth Circuit will reverse itself on this point, after having been reversed on the other half of its decision.

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