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Argument recap: Now that we all agree the Ninth Circuit was wrong…

At yesterday’s oral argument in Los Angeles County Flood Control District v. Natural Resources Defense Council, Inc., the Court spent very little time addressing the question it had granted certiorari to decide: whether the Clean Water Act’s permitting requirements apply when someone channels water from one part of a river to another through a concrete channel or similar flood control mechanism.  The lack of discussion of the question presented is not surprising given that, as I described in the argument preview, everyone in the case agrees that the answer to that question is “No.”  Instead, most of the argument focused on what the Court should do with the case in light of that consensus.  The flood control district, represented by Timothy Coates of Greines, Martin, Stein & Richland LLP, argued that the Court should reverse the Ninth Circuit and make clear that the order ends the case.  The United States, represented by Assistant to the Solicitor General Pratik Shah, urged the Court to simply vacate the decision below and remand the case for the Ninth Circuit to decide whether there is anything left.  And Aaron Colangelo of the Natural Resources Defense Council urged the Court to affirm on an alternative ground (albeit one that the Ninth Circuit itself had rejected).


As described in greater detail in the preview, petitioner Los Angeles County Flood Control District (the District), runs a stormwater drainage system that carries stormwater into several rivers.  To do so, it needs a Clean Water Act permit.  As allowed by the Act, the District joined together with a number of cities upstream to obtain a joint system-wide permit that covers hundreds of miles of pipes and channels that discharge into the rivers in a great many places.  Rather than requiring monitoring of the quality of the water as it is discharged at each of those hundreds of so-called “outfalls,” the permit requires mass emission monitoring stations in the river itself.   The relevant stations here were in a part of the river that had been “channelized,” meaning that the bed and shores of the river had been lined with concrete as part of a flood control effort.   Those stations showed that, collectively, the permit holders were discharging too many pollutants.  The problem is that, because the monitoring stations are in the rivers, rather than at the outfalls, those results cannot say which permit holder is responsible for the excess pollution.

The Ninth Circuit held, nonetheless, that the readings from the stations were sufficient evidence to hold the District liable for violating the permit.  It seemed to say that this was because the part of the river in which the stations were located should be treated as part of the District’s stormwater system, such that the water coming through the river past the monitoring station should be treated as if it were water coming out of the end of one of the District’s stormwater pipes (the quality of which the District must control).

While some of the parties in the Supreme Court doubted that this is what the Ninth Circuit really meant, everyone agreed that if it was, then the Ninth Circuit was wrong.  The Supreme Court had previously held that a channel or similar conveyance that simply moves water from one part of a body of water (like a river) to another is not subject to the Clean Water Act.

The argument

Arguing on behalf of the District, Mr. Coates spent much of his argument trying to persuade the Court not to consider – and if it did consider, then to reject – an alternative grounds for affirmance asserted by the NRDC in its briefing.  Specifically, the NRDC argued that under the terms of this particular permit, the District had agreed to be jointly and severally liable with its co-permittees for any excess pollution in the river picked up by the monitoring stations.

Why shouldn’t the Court simply write an opinion saying that the apparent rationale of the Ninth Circuit was wrong and leave it for the Ninth Circuit to figure out, on remand, whether there was anything left in the case, Justice Sotomayor asked.

Coates argued that the Court should simply reverse and end the case because there was nothing left to decide – the Ninth Circuit had already rejected the NRDC’s argument as applied to two other rivers at issue in the case, noting that the permit expressly says that each co-permittee is liable only for its own excesses.

But did that holding make any sense, the Chief Justice wondered.  Why would you put monitoring stations in the middle of a river if, under the permit, no one could be held liable for the excess pollution the stations detect, without further testing of the outfalls of each permit holder?  And given that the District was by far the biggest source of stormwater among the permit holders, didn’t it make sense that if there was excess pollution in the river, the District should have to do something to abate it? Justices Kennedy and Ginsburg asked similar questions as well.

Coates argued that the monitoring stations were intended simply to detect whether the system as a whole (including the other cities’ emissions) was emitting too much pollution, at which point there would be a second round of investigation to figure out what to do about it.   In this case, if NRDC wanted to hold the District liable for the excess pollution, it should have conducted further tests at the District’s outfalls.

Coates also noted that under a renewed permit that will soon go into effect, there will be additional monitoring at the District’s outfalls, reducing or eliminating the need for additional testing to assign responsibility for excess pollution in the river.

So, Justice Breyer summed up, if someone is concerned about excess pollution it can either do some additional testing at the outfalls or ask the regulating authorities to require better monitoring at the outfalls themselves, as apparently has now happened.  Exactly, said Coates.

But in addition, Coates argued, the Court should not consider the argument at all because the Ninth Circuit itself rejected it when NRDC made the argument with respect to some other rivers in the case, and NRDC did not file a cross-petition asking the Court to reverse that determination.

Many of the questions directed to Assistant to the Solicitor General Shah followed up on that assertion, asking why the government was suggesting a remand when it appeared that the Ninth Circuit had already rejected the NRDC’s only remaining argument.  Shah suggested that the Ninth Circuit might change its interpretation of the permit once it was clear that the monitoring results could not establish liability on the theory that the channelized rivers were part of the District’s stormwater system.  Otherwise, as several Justices had noted, the monitoring stations would not serve any particularly useful purpose.   And, Shah suggested, if the only way to make the monitoring stations useful was to hold the co-permittees jointly liable for any violation detected, the Ninth Circuit might find that interpretation more plausible on remand.

Justice Scalia was skeptical – if the permit doesn’t make sense, then it doesn’t make sense.  That’s the fault of the drafters and regulators.  It would not be the Ninth Circuit’s job to twist the terms to reach a more sensible result.

Justice Breyer mused whether the Court could avoid the problem by just writing at the end of the opinion “Reversed.”  Would that then leave it to the Ninth Circuit to figure out what was left in the case?

At the same time, however, Justices Breyer, Sotomayor, and Ginsburg asked whether leaving that option open was proper, given that adopting the NRDC’s alternative argument on remand would effectively revive the group’s claims with respect to two other rivers.  And the general rule is that a respondent like NRDC has to file a cross-petition if it wants to expand the judgment in its favor.

In the end, Shah advised the Court that the government did not have a position on whether NRDC should have filed a cross-petition.

When it came time for the NRDC’s lawyer, Mr. Colangelo, to take the podium, the actual question the Court had granted to decide was long forgotten.  The Chief Justice started the questioning by asking Mr. Colangelo where, exactly, in the permit was the District made liable for violations without any proof that the excess pollution was coming from the District’s system?  Colangelo tried to walk the Court through three parts of the permit supporting his position, but was met with open hostility by Justice Scalia.  Later on, Justice Kennedy also seemed unconvinced.  And instead of coming to his rescue, the more liberal Justices instead expressed skepticism about the practicality and fairness of holding the District liable for excess pollution that could very well have originated further upstream from other co-permittees.

Eventually, with some apparent exasperation, Justice Breyer asked whether it wouldn’t be a better idea to let everyone work the issue out through the administrative process for revising the permit, as apparently had already happened with the new permit, which required monitoring both in the rivers and at some of the outfalls.

Colangelo responded that NRDC’s position was entirely workable and fair.  Similar to the tort doctrine of joint and several liability, once a violation is detected in the river, all the co-permittees should be held liable unless a particular defendant can show that it is not contributing to the problem.

This was all “fine and good,” the Chief Justice said, but was the question even before the Court, given the lack of a cross-petition?  Yes, Colangelo said.  NRDC was not asking for the Court to revive its claims with respect to the other rivers on which it lost in the Ninth Circuit.  It was only asking the Court to sustain the favorable judgment on the two rivers before the Court on the basis of its alternative argument.  And because it was not asking the Court to expand the judgment in its favor, it was not required to file a cross-petition.

That argument met skeptical questions from Justice Ginsburg and the Chief Justice, who seemed somewhat sympathetic but noted that the other side had cited “a lot of cases that say you can’t do that.”   Justice Scalia also wondered, even setting aside the lack of a cross-petition, whether NRDC had adequately raised the argument in its brief in opposition.


There is no question that the Ninth Circuit’s decision in this case will be at least vacated.  The real question is whether the Court will simply end the case, give the NRDC a chance at persuading the Ninth Circuit to keep the case alive on other grounds, or decide the alternative ground itself.    I think the last option is the least likely.  To reach the alternative ground, the Court would first have to resolve the tricky cross-petition question.  And the alternative argument would seem to apply only to this one permit, and seemingly only for this one case because the permit has since been altered to require monitoring at the outfalls as well.

I think it is far more likely that the Court will either vacate and remand, or simply reverse on the theory that the Ninth Circuit has already rejected the NRDC’s alternative argument.

More broadly, the case offers some lessons for Supreme Court practitioners.  The first is the value of not defending an indefensible court of appeals decision.  By immediately conceding that the answer to the question presented was “no,” the NRDC was able to refocus the Court’s attention on a much more plausible ground for preserving the judgment below or at least keeping the case alive for a remand.  The second lesson is that such a strategy requires careful planning and foresight at the petition stage.  It may be that NRDC has the better of the argument that it was not required to file a cross-petition.  But the oral argument in this case should lead future litigants to think carefully about the benefits of erring in the direction of filing a potentially unnecessary conditional cross petitions to avoid, at the very least, the distractions that dominated much of the argument in this case.



Recommended Citation: Kevin Russell, Argument recap: Now that we all agree the Ninth Circuit was wrong…, SCOTUSblog (Dec. 6, 2012, 11:49 AM),