Tuesday, December 4, 2012

Preliminary Reactions to the Supreme Court's Stormwater Arguments

Yesterday, the Supreme Court heard oral argument in Decker v. Northwest Environmental Defense Center, a Clean Water Act case involving forest roads and stormwater runoff.  Today, it heard argument in Los Angeles County Flood Control District v. Natural Resources Defense Council, another stormwater case, this one involving urban stormwater runoff.  Already, news outlets and a few bloggers have covered the Decker argument, which was thrown for a bit of a loop Friday when EPA issued a new rule purportedly clarifying that the discharges at issue were exempt from permitting coverage.  In this post, I’ll try to add a few other reactions.

A few things quickly emerge from the arguments:

Decker isn’t likely to go the merits.  Almost all of the argument addressed how the Court should get rid of the case.  Should it dismiss it as moot?  Vacate the Ninth Circuit opinion?  Remand to the Ninth Circuit to consider mootness arguments?  Or dismiss the case as improvidently granted?  Merits arguments did arise, but not as issues the litigants wanted the Court to address.  Instead, litigants primarily raised merits issues as things the Court would want to avoid, and then argued about what procedural course would best achieve such avoidance.

The LACFCD decision won't devote much attention to the issue upon which the Court granted cert.  In theory, the Court granted review of the case to consider a potential inconsistency between the Ninth Circuit’s ruling and the Supreme Court’s ruling in South Florida Water Management District v. Miccosukee Tribe, 541 U.S. 95 (2004).  That issue received very little attention in the argument, and the respondents made no attempt to defend the sentence in which Ninth Circuit created that question (nor had they asked the Ninth Circuit to issue such a holding in the litigation below).  Instead, almost the entire argument addressed the way in which monitoring results showing in-stream impairment do or do not lead to liability for individual members of the Los Angeles Basin’s MS4 system.   The justices seemed somewhat skeptical of the district’s argument that its monitoring system was designed in such a way that finding a violation wouldn’t lead to any finding of liability (Justice Scalia: “Whose fault is that?”; Justice Ginsburg: “What’s the purpose of having a monitoring station if nothing can be done?”), but even more skeptical when NRDC tried to argue the contrary position.  In short, the justices just seemed to view this as a case involving a poorly drafted permit, and to be highly resistant to any notion of shared liability for individual contributors to larger stormwater problems.

At least some of the Justices don’t think much of the Ninth Circuit.  This, of course, is not big news.  But reading both transcripts, it’s striking how little confidence some of the justices seem to have in the Ninth Circuit’s ability to sort things out on remand.  A typical passage from the LACFCD argument, in which Justice Scalia implies that the Ninth Circuit will find any possible way to rule in NRDC’s favor:

JUSTICE SCALIA: What if this panel found -- found for you on the ground that they used; they will surely find for you on this other ground, which -- (Laughter.)

MR. COLANGELO: Yes. We expect they would.

JUSTICE SCALIA: -- which has at least an inkling of plausibility.

These cases will likely remain interesting, and they may even wind up saying something about stormwater.  But at this point, their greatest value as precedent may be for questions about how courts dispose of procedurally messy cases.

-Dave Owen




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