This week, the U.S. Supreme Court decided
Los Angeles County Flood Control District v. NRDC, No.11-460 (argued Dec. 4, 2012). This was the Clean Water Act case that I've
said several times was not likely to amount to much. The lawsuit involved the Clean Water Act permit encompassing numerous sections of the Los Angeles River. The Court held that there was no discharge of a pollutant for it to consider. In a short opinion written by Justice Ginsburg, the Court summarized:
The Court granted review in this case limited to a single question: Under the Clean Water Act (CWA), 86 Stat., as amended, 33 U. S. C. §1251 et seq., does the flow of water out of a concrete channel within a river rank as a “discharge of a pollutant”? In this Court, the parties and the United States as amicus curiae agree that the answer to this question is “no.” They base this accord on South Fla. Water Management Dist. v. Miccosukee Tribe, 541 U. S. 95, 109–112 (2004), in which we accepted that pumping polluted water from one part of a water body into another part of the same body is not a discharge of pollutants under the CWA. Adhering to the view we took in Miccosukee, we hold that the parties correctly answered the sole question presented in the negative. The decision in this suit rendered by the Court of Appeals for the Ninth Circuit is inconsistent with our determination. We therefore reverse that court’s judgment.
Even though the Ninth Circuit's opinion favoring the environmental organization plaintiff was reversed and remanded,
environmentalists agreed the Court's decision was a good one:
The Supreme Court ruled today that the 9th Circuit committed a legal error in holding the Los Angeles County Flood Control District liable for violations of its Clean Water Act (CWA) “municipal separate storm sewer system” (or MS4) pollution discharge permit. The suit, Los Angeles County Flood Control District v. Natural Resources Defense Council, had been initiated by NRDC and allied environmental groups, and its victory below was reversed. A loss for the environment? Actually, the careful and narrow Supreme Court ruling dodged a potential weakening of the CWA, and appears to have left open for consideration whether conceded permit violations by the Los Angeles County District meant it deserved to be held liable. The case potentially could have weakened the centrality of self-reported discharge permit violations and decades of rulings that such violations result in strict liability. The Court, however, dodged such a result, explicitly leaving that issue open in reversing and remanding the case.
Greenwire and the
L.A. Times also have good reports on the decision.
