U.S. Supreme Court Watch: Los Angeles County Flood Control District v. Natural Resources Defense Council, Inc.

Today, the U.S. Supreme Court is set to hear the second of two Clean Water Act cases to be argued this term. The first case, Decker v. Northwest Environmental Defense Center, was argued yesterday while the second case, being argued today, Los Angeles County Flood Control District v. Natural Resources Defense Council, Inc., will address the following Clean Water Act issues:

Questions Presented:

The Clean Water Act regulates the addition of pollutants to the navigable waters of the United States, including pollutants stemming from municipal stormwater systems. 33 U.S.C. §1342(p).

The questions presented by this petition are:

1. Do "navigable waters of the United States" include only "naturally occurring" bodies of water so that construction of engineered channels or other man-made improvements to a river as part of municipal flood and storm control renders the improved portion no longer a "navigable water" under the Clean Water Act?

2. When water flows from one portion of a river that is navigable water of the United States, through a concrete channel or other engineered improvement in the river constructed for flood and stormwater control as part of a municipal separate storm sewer system, into a lower portion of the same river, can there be a "discharge" from an "outfall" under the Clean Water Act, notwithstanding this Court's holding in South Florida Water Management District v. Miccosukee Tribe of Indians, 541 U.S. 95, 105 (2004), that transfer of water within a single body of water cannot constitute a "discharge" for purposes of the Act?

Resources

Los Angeles County Flood Control District v. Natural Resources Defense Council, Inc., U.S. Supreme Court Docket, http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/11-460.htm

Preview, Los Angeles City Flood Control v. Natural Resources, et al., ABA, http://www.americanbar.org/publications/preview_home/11-460.html

9th Circuit Opinion, available at, http://www.ca9.uscourts.gov/datastore/opinions/2011/07/13/10-56017.pdf

Los Angeles County Flood Control District v. Natural Resources Defense Council, Scotus Blog, http://www.scotusblog.com/case-files/cases/los-angeles-county-flood-control-district-v-national-resources-defense-council/?wpmp_switcher=desktop

The transcript and audio recordings should be available the end of the week.

U.S. Supreme Court Watch: Decker v. Northwest Environmental Defense Center (NEDC)

Today, the U.S. Supreme Court is set to hear the first of two Clean Water Act cases set to be argued this term.  The first case, being argued today, Decker v. Northwest Environmental Defense Center (NEDC), will address the following:

Questions Presented:

(1) Congress has authorized citizens dissatisfied with the Environmental Protection Agency's (EPA's) rules implementing the Clean Water Act's (CWA's) National Pollutant Discharge Elimination System (NPDES) permitting program to seek judicial review of those rules in the Courts of Appeals. See 33 U.S.C. § 1369(b). Congress further specified that those rules cannot be challenged in any civil or criminal enforcement proceeding. Consistent with the terms of the statute, multiple circuit courts have held that if a rule is reviewable under 33 U.S.C. § 1369, it is exclusively reviewable under that statute and cannot bechallenged in another proceeding. 

Did the Ninth Circuit err when, in conflict with those circuits, it held that a citizen may bypass judicial review of an NPDES permitting rule under 33 U.S.C. § 1369, and may instead challenge the validity of the rule in a citizen suit to enforce the CWA? 

(2) In 33 U.S.C. § 1342(p), Congress required NPDES permits for stormwater discharges "associated with industrial activity," and delegated to EPA the responsibility to determine what activities qualified as "industrial" for purposes of the permitting program. EPA determined that stormwater from logging roads and other specified silvicultural activities is non-industrial stormwater that does not require an NPDES permit. See 40 C.F.R. § 122.26(b)(14). Did the Ninth Circuit err when it held that stormwater from logging roads is industrial stormwater under the CWA and EPS’s rules, even though EPA has determined that it is not industrial stormwater?

Resources

Decker v. Northwest Environmental Defense Center (NEDC), U.S. Supreme Court Docket,   http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/11-338.htm
 
Preview, Decker v. Northwest Environmental Defense Center (NEDC), ABA, http://www.americanbar.org/publications/preview_home/11-338and11-347.html
 
9th Circuit Opinion, available at, http://www.ca9.uscourts.gov/datastore/opinions/2011/05/17/07-35266.pdf
 
Decker v. Northwest Environmental Defense Center, Scotus Blog, http://www.scotusblog.com/case-files/cases/decker-v-northwest-environmental-defense-center/ 
 
The transcript is available here, while the audio recordings should be available the end of the week.

Sackett v. EPA -- US S.Ct.

SACKETT v. ENVIRONMENTAL PROTECTION AGENCY decision

From the Syllabus:

The Sacketts may bring a civil action under the APA to challengethe issuance of the EPA’s order. Pp. 4–10.

(a) The APA provides for judicial review of “final agency action for which there is no other adequate remedy in a court.” 5 U. S. C. §704.The compliance order here has all the hallmarks of APA finality. Through it, the EPA “determined” “rights or obligations,” Bennett v. Spear, 520 U. S. 154, 178, requiring the Sacketts to restore theirproperty according to an agency-approved plan and to give the EPA access. Also, “legal consequences . . . flow” from the order, ibid., which, according to the Government’s litigating position, exposes theSacketts to double penalties in future enforcement proceedings. The order also severely limits their ability to obtain a permit for their fillfrom the Army Corps of Engineers, see 33 U. S. C. §1344; 33 CFR§326.3(e)(1)(iv). Further, the order’s issuance marks the “consummation” of the agency’s decisionmaking process, Bennett, supra, at 178, for the EPA’s findings in the compliance order were not subject tofurther agency review. The Sacketts also had “no other adequateremedy in a court,” 5 U. S. C. §704. A civil action brought by the EPAunder 33 U. S. C. §1319 ordinarily provides judicial review in suchcases, but the Sacketts cannot initiate that process. And each day they wait, they accrue additional potential liability. Applying to the Corps of Engineers for a permit and then filing suit under the APA if that permit is denied also does not provide an adequate remedy for the EPA’s action. Pp. 4–6.
(b) The Clean Water Act is not a statute that “preclude[s] judicial review” under the APA, 5 U. S. C. §701(a)(1). The APA creates a “presumption favoring judicial review of administrative action.” Block v. Community Nutrition Institute, 467 U. S. 340, 349. While this presumption “may be overcome by inferences of intent drawn from the statutory scheme as a whole,” ibid., the Government’s arguments do not support an inference that the Clean Water Act’s statutory scheme precludes APA review. Pp. 7–10.

AEP v. Connecticut: The Decision and its Implications BNA Webinar

On June 20, the U.S. Supreme Court issued its highly anticipated ruling in American Electric Power Co., Inc., et al. v. Connecticut (AEP), the first climate change nuisance lawsuit to reach the high court. In an opinion written by Justice Ruth Bader Ginsburg, the Supreme Court ruled 8-0 that the Clean Air Act and Environmental Protection Agency regulations authorized by the act displace the federal common law cause of action. Reversing the U.S. Court of Appeals for the Second Circuit ruling, the high court held federal common law nuisance claims cannot be brought against utilities for their greenhouse gas emissions. The Second Circuit had allowed eight states, New York City, and three land trusts to move forward with claims against the utility company defendants alleging they have created a public nuisance by contributing to global warming.

Significantly, the Supreme Court split 4-4 on the issue of whether the petitioners demonstrated they had standing to bring the claim and affirmed the Second Circuit's ruling that they did. The Supreme Court did not address issues raised by petitioners at oral argument and in briefing regarding the political doctrine defense. It remanded the case for consideration of plaintiffs’ state law nuisance claim, which was not before the court on this appeal. The high court suggested that on remand the court should consider whether the state law cause of action is preempted. Clearly, the ruling in AEP will have broad implications for U.S. industries that emit greenhouse gases.

This 90-minute webinar, a second in a series, featuring Christina M. Carroll , J. Randolph Evans, and Joanne Zimolzak of McKenna Long & Aldridge LLP, is designed to help attendees:

•Become knowledgeable about the key points raised and outcomes resulting from the U.S. Supreme Court decision in the AEP case
•Analyze the impact and implications of the standing holding in the AEP case
•Understand how ongoing litigation may be impacted by the decision, including the effect on the outcome of a related case, Kivalina v. ExxonMobil Corp.
•Consider the interrelationships between the AEP decision and executive and legislative branch greenhouse gas emission policies, and
•Understand what the AEP case addressed and what questions remain