JURIST Guest Columnists Eric Delio and George Thompson, University of Pittsburgh School of Law Class of 2013, analyze Los Angeles County Flood Control District v. Natural Resources Defense Council, Inc. and its potential impact...
The recent US Supreme Court case, Los Angeles County Flood Control District v. Natural Resources Defense Council, Inc. [PDF], presented an issue that stemmed from a factual misunderstanding by the US Court of Appeals for the Ninth Circuit, and was not addressed at length in oral argument. However, some of the underlying issues in this case could have important ramifications for the Natural Resources Defense Council (NRDC) in its future legal efforts, as it gained a significant legal victory in the rejection of the "good faith compliance" argument advanced by the Los Angeles County Flood Control District ("the District").
The issue presented in the case was whether water moving from one portion of a river to another, through a man-made channel, could constitute a discharge under the Clean Water Act (CWA). Both the District and NRDC agreed that the answer was "no" based on the holding of S. Florida Water Mgmt. Dist. v. Miccosukee Tribe of Indians. Miccosukee held that there is not an addition, and therefore not a discharge under the CWA, when water is transferred between "two hydrologically indistinguishable parts of a single water body."
Instead, the parties argued about whether pollutant concentrations detected by in-stream mass monitoring stations in the Santa Clara River, the Los Angeles River, the San Gabriel River and Malibu Creek which exceeded the water quality standards established in a National Pollutant Discharge Elimination System (NPDES) permit could result in liability imposed on the District and whether the District must actually comply with the permit's water quality standards.
The District operates a Municipal Separate Storm Sewer System (MS4), which is a network of storm drains and pipes that conveys stormwater runoff to local water bodies. MS4s are owned and operated by public entities, such as cities or counties. MS4s do not transport sewage; however, stormwater runoff can pick up pollutants before entering a storm drain.
MS4s require specialized NPDES permits under section 402(p) of the CWA. Because MS4s can have hundreds of outfalls discharging into various parts of a water body across miles, they are granted area permits. MS4 permittees are subject to the water quality standards of the receiving waters, meaning the terms of the permit establish certain pollutant levels that are not to be exceeded. Exceedances of these standards are generally considered a violation of the CWA.
In the Los Angeles County MS4, monitoring stations are located in concrete-channeled sections of the rivers. NRDC produced data taken from these monitoring stations that indicated that the receiving waters have exceeded their designated water quality standards 140 times over a five year period. NRDC argued that these exceedances should impose liability on the District to correct the violations. However, the District argued that it can't be established that water moving through the MS4 added pollutants to the water bodies. Further, the District argued that its compliance with certain sections of the permit absolved it from complying with water quality standards and instead the District only had to make a good faith effort to comply with the standards.
The district court agreed with NRDC that the District violated the terms of the permit. However, the district court wanted specific evidence "showing that discharges from the District portions of the MS4 are contributing to the exceedances at the mass emissions stations." On appeal, the Ninth Circuit agreed with the district court that the exceedances of water quality standards constituted violations of the CWA. Importantly, the Ninth Circuit flatly rejected the District's "good faith" argument. Further, the Ninth Circuit found the District liable, holding that water flowing by the monitoring stations constituted a discharge under the CWA.
However, as the US amicus brief [PDF] suggests, the Ninth Circuit's holding reflects a factual misunderstanding of the relationship of the MS4 to the rivers. The brief posits that "the court mistakenly believed that the monitoring stations at issue were sampling water from a portion of the MS4 distinct from the rivers themselves," and not from inside the rivers.
Although the Ninth Circuit's holding was likely the result of its factual misunderstanding, the US Supreme Court granted certiorari to decide whether water moving from one portion of a river to another, through a man-made channel, could constitute a discharge under the CWA. The Court reversed the Ninth Circuit and reaffirmed its holding in Miccosukee that transferring "polluted water between 'two parts of the same water body' does not constitute a discharge of pollutants under the CWA." Accordingly, the District could not be liable for the exceedances detected at the monitoring stations.
The Court's opinion did not resolve the plaintiff's contention that "exceedances detected at the instream monitoring states are by themselves sufficient to establish the District's liability under the CWA for its upstream discharges." However, it remanded that question to the Ninth Circuit, which already decided this question against the NRDC.
Accordingly, at oral argument [PDF], Justice Antonin Scalia asked NRDC's attorney, Aaron Colangelo, to articulate reasons why the Ninth Circuit would answer that question differently on remand. Colangelo suggested that the Ninth Circuit might answer the question differently because "a permit is interpreted like a contract, and it is a cardinal rule of contract interpretation that a contract should be read ... where possible to be both lawful and enforceable." And if the Ninth Circuit does not change its answer, then it "would render [the permit] unenforceable because none of the permittees can be held liable."
Colangelo's answer was apparently persuasive to the Court because it remanded the case to the Ninth Circuit. However, it seems unlikely that the Ninth Circuit will be persuaded by this theory for two reasons.
First, the NRDC is assuming that if the exceedances detected at the mass monitoring stations do not establish a permit violation, then the only other way to prove that the District violated its permit in the pollutant amounts alleged by the NRDC would be to "engage in the Sisyphean task of testing particular storm drains in the County for the source of each pollution." However, the Ninth Circuit previously rejected this assumption, stating: "Contrary to the Plaintiff's contention, [establishing the District's liability] would not require independent sampling of the District's outfalls. Indeed, simply ruling out other contributors of stormwater," or sampling from "'at least one outflow that included a standards-exceeding pollutant'" could satisfy the NRDC's evidentiary burden. Therefore, the Ninth Circuit is unlikely to agree that the permit is unenforceable unless the mass monitoring stations are sufficient to establish the District's liability.
Second, the Ninth Circuit is likely to reject the NRDC's argument because the District is now subject to an updated MS4 permit, which, according to Attorney Colangelo, "adequate[ly]" fixes the alleged defect by requiring new monitoring stations to be placed next to outfalls rather than in the rivers. Accordingly, the Ninth Circuit should be hesitant to hold the District in violation of the old permit based on general contract interpretation principles.
If the Ninth Circuit rules against the NRDC, then it is unclear whether the NRDC will appeal the decision to the Supreme Court. The NRDC has a significant legal victory in the Ninth Circuit's rejection of the District's argument that MS4 permittees only need to make a good faith effort at compliance rather than strictly comply with the water quality standards. So, even though the District would prevail, the NRDC could use the precedent to establish violations under the new permit. The NRDC could also possibly wield the decision to allege violations against other MS4 permittees throughout the US.
However, if the Ninth Circuit agrees with the NRDC, the District will likely appeal the decision. This would finally give the Supreme Court the opportunity to decide whether the CWA requires MS4 permittees to comply with the water quality standards contained in the permits, or whether the permittees only need to make a good faith effort at compliance with its terms.
Eric Delio, University of Pittsburgh School of Law Class of 2013, earned his BA in English and Professional Writing from Mercyhurst University. He has worked as a certified legal intern for the University of Pittsburgh School of Law Environmental Clinic and as a research assistant for Professor Oday Salim. Currently, he works as a law clerk for the Center for Coalfield Justice.
George Thompson, University of Pittsburgh School of Law Class of 2013, earned his BA in Political Science from the University of Pittsburgh. He has worked as a certified legal intern for the University of Pittsburgh School of Law Environmental Clinic and for the Governor's Office of General Counsel, Pennsylvania Department of Transportation.
Suggested citation: Eric Delio and George Thompson, Good Faith Versus Strict Compliance with MS4 Permits Issued Under the Clean Water Act: The Potential Impact of LA County v. NRDC, JURIST - Dateline, Feb. 27, 2013, http://jurist.org/dateline/2013/02/eric-delio-george-thompson-ms4-cwa.php
This article was prepared for publication by Elizabeth Imbarlina, the head of JURIST's student commentary service. Please direct any questions or comments to her at firstname.lastname@example.org