Much ado about nothing, part II

December 06, 2012 | By DAMIEN SCHIFF

Last month I wrote about a very peculiar case just argued this week in the United States Supreme Court—Los Angeles County Flood Control District v. Natural Resources Defense Council—concerning the Clean Water Act’s regulation of stormwater.  The case is peculiar because all the parties and the federal government as amicus agree on how the question presented should be answered, but the enviromentalists and the feds believe that the QP is irrelevant to what the Ninth Circuit ruled below.  Basically, they see the problem as a factual error about where the monitoring stations for the District’s stormwater permit are located.

Well, based on this week’s oral argument, I’m predicting that the Court will vacate the Ninth Circuit’s decision.  That leaves the question of whether the Court will reverse, or simply remand.  One could make a strong argument that, had the Ninth Circuit got its facts right, it would have ruled for the District (based on how it resolved other claims in favor of the District that the environmentalists did not appeal).  Thus, one could argue that, once SCOTUS corrects the facts, it can go ahead and use the Ninth Circuit’s resolution of the law to direct judgment for the District.  But the environmentalists and the feds argue that it’s at least possible that, notwithstanding the record correction, the Ninth Circuit could still come out the same way.  The environmentalists in particular argue that any other result would mean that the District’s existing stomwater permit does not have an enforceable compliance mechanism.  To the environmentalists, that’s legally impossible, whereas to at least some of the Justices, that’s just what happens when you have a poorly drafted permit.