How the Los Angeles County Flood Control District MS4 Case Supreme Court Loss is a Win for the Clean Water Actby William Buzbee
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. [Disclosure—I played a limited role in advising the plaintiff-respondent NRDC in this case.]
The case involved numerous self-reported water quality violations by the Los Angeles County Flood Control District. The District, and numerous other municipalities discharging stormwater into the same water bodies, were together allowing too many pollutants to flow into the Los Angeles and San Gabriel Rivers, degrading the water bodies more than allowed in the District permit The 9th Circuit, however, wrote an opinion revealing discomfort with holding the District liable if there was no proof that the Los Angeles County District itself was responsible for such exceedances. And in so doing, the 9th Circuit made either a legal or factual error about the location of the CWA monitoring stations and the ability to attribute causation for violations to the Los Angeles County District. Furthermore, as the District argued before the Supreme Court, parts of the 9th Circuit ruling could be read to violate the Supreme Court’s 2004 Miccosukee decision, which held that so-called discharges that just move polluted water from one part of a water body to another part of the same water body are not “discharges” at all. The Court granted the petition for a writ of certiorari on whether the District could be held liable after Miccosukee for so-called discharges that actually involved movement of polluter waters within the same water body. Before the Supreme Court, parties on both sides (including NRDC), and the United States in its amicus brief, agreed that there couldn’t be liability for water pollutant movements within the same waterbody And today the Supreme Court agreed, restating the basic conclusion in Miccosukee.
But in the briefing and in the Supreme Court argument, NRDC and its allies pursued other grounds for upholding the 9th Circuit’s judgment, even if its ruling reflected legal and possibly factual confusion. The Los Angeles County District’s permit monitoring and required reporting revealed violations. Furthermore, that permit’s content had been fully vetted and actually litigated and ultimately upheld in California tribunals under the CWA’s cooperative federalism delegated program provisions. The CWA leaves states with great latitude in how they protect their waters, provided that they are no more lax than required by federal law and regulations. So if the Los Angeles County District’s MS4 permit required particular types of pollution control, water quality, and monitoring, and its monitoring revealed violations, then under decades of decisions, the District would be liable. To hold otherwise would undercut the centrally important federalism-linked strict liability, self-reporting permit violation provisions of the CWA. And NRDC made this argument forcefully before the Court.
The Supreme Court did not state that the Los Angeles County District was liable under this logic, but carefully and explicitly did not resolve it in reversing and remanding the case. It stated that the permit violation argument “is not embraced within, or even touched by, the narrow question on which we granted certiorari.” The Court obviously did not state agreement with this argument, but this does not mean it disagreed; as it noted, it did not grant certiorari on this argument or question and Court stated that “we therefore do not address, and indicate no opinion on, the issue the NRDC and Baykeeper seek to substitute for the question we took up for review.” NRDC should be able to pursue this argument on remand and in future CWA permit violation cases, as it and other citizen litigators have since the 1980s. Abundant law that has never been questioned by the Supreme Court should give NRDC a good chance of victory under basic and well established CWA logic. The Los Angeles County District will no doubt reiterate its argument on remand, but NRDC will be positioned to argue that the law has not changed. In addition, the District is at this point operating under a new and different permit, so the most important repercussions of this case will be on future CWA permit violation cases. Hence, despite the apparent loss, the CWA’s key logic and enforceability should ultimately emerge unscathed. Considering the risks posed by this case, that is no small victory.