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Opinion analysis: The Court unanimously agrees with everyone else

It is not hard to predict the outcome of a case in which both parties, and the United States as an amicus, agree on the answer to the question presented.  Yesterday, the Court made it unanimous by agreeing with everyone else and reversing the Ninth Circuit in  Los Angeles County Flood Control District v. Naturnal Resources Defense Council, Inc., No. 11-460.

As previously described, the question in the case was whether the Clean Water Act’s permitting requirements apply when water flows from one portion of a navigable river through a concrete channel and then back into a lower portion of the river.  The Act generally requires a permit for any “discharge of pollutants” into a river.  And in a prior case, the Supreme Court had held that moving polluted water from one part of a body of water to another did not constitute a discharge.  Today, the Court agreed with everyone else that this precedent applies equally when water moves from one part of a river to another through a channelized portion of the riverbed.

The Court refused to go any further to address the NRDC’s alternative ground for affirmance, which would have first required deciding whether NRDC was required to file a cross-petition to preserve the argument.  Instead, as a simple matter of discretion, the Court stuck to the question upon which it granted certiorari and reversed.

So this proved to be a very straightforward case that raises only two interesting questions in my mind.  The first is why the Court bothered setting the case for briefing and argument, rather than just summarily reversing, given that all the parties have agreed on the answer to the question presented from the beginning.

The second odd part of the case is that Justice Alito concurred in the judgment – meaning he agreed with the result, but did not join in the Court’s reasoning – but wrote no concurring opinion to explain what part of the Court’s analysis he disagreed with.  While noting concurrences and dissents without including an opinion used to happen with some frequency, I have not seen many instances of unexplained concurrences in recent times.

Plain English: The Clean Water Act does not regulate movement of water from one part of a river, through a concrete channel, into a lower portion of the same river.

Recommended Citation: Kevin Russell, Opinion analysis: The Court unanimously agrees with everyone else, SCOTUSblog (Jan. 10, 2013, 10:14 AM),