Supremes nearly laugh L.A. storm water case out of court
By Wayne Lusvardi
On Tuesday, Nov. 4, the U.S. Supreme Court came close to almost laughing out of court a lawsuit brought by environmentalists against the Los Angeles County Flood Control District. The National Resources Defense Council wanted the Flood Control District to crack down on each of the 1,400 rainwater pollution dischargers into the San Gabriel and Los Angeles Rivers.
The problem is that it is impossible today to accurately monitor who is polluting and how much. The environmentalists contended that every industry that discharged water into the river should be responsible. They wanted so-called polluters to be responsible, even if it could not be determined who was polluting. Clean water advocates wanted blame fixed on someone, even if the pollution came from a natural source such as bird droppings or from the concrete that lines the flood channels. But each industry already has to get its own separate storm water discharge permit under the U.S. Environmental Protection Agency’s National Pollutant Discharge Elimination System (NPDES).
At one point in the proceeding, Justice Stephen Breyer facetiously asked attorney Timothy T. Coates — representing the County Flood Control District — whether it would satisfy him if the court just wrote the judgment that he wanted. This was met by rousing laughter.
Breyer also humorously asked attorney Aaron Colangelo, representing the U.S. Department of Justice in the case, whether he had struck out in two other river pollution cases on the Santa Clara River and Malibu Bay and was now about to strike out a third time.
Colangelo first said, Yes. Then replied that he didn’t think he had struck out.
But Breyer quickly rejoined that such was the way he understood it, resulting in another round of laughter in the courtroom.
What the Case Supposedly Is About
The case involves a lawsuit by so-called clean-water advocates seeking to require Los Angeles county to be responsible for pollution from storm water flowing into the two rivers — which also serve as flood control channels. The U.S. 9th Circuit Court of Appeals had held the county responsible. Cities and the county flood control district need a permit to allow rainwater to flow into rivers just as it has flowed for thousands of years. These permits are called “MS4’s,” a bureaucratic term meaning “municipal separate storm sewer systems.”
The main source of pollution is bacteria from vegetative matter from street trees that decompose in roof and street gutters. When this bacteria flows downstream and outlets into the ocean, it causes minor health problems for surfers in the community of Surfside near Long Beach. Monitoring stations inside flood control channels reportedly have found excess pollution. But it is nearly impossible to find what share each upstream polluter contributes to the problem.
The county argued that the clean water advocates couldn’t show a reasonable causal connection –called nexus in law — to the proportionate sources of the pollution. The 9th Circuit found the Flood Control District not liable for two other storm water channels in Los Angeles, Santa Clara River and Malibu Bay. But it found the district liable for pollution in the Los Angeles and San Gabriel Rivers. This was the first time a local government was found liable to “discharging” rain water — called “storm water” to make it sound bad — into historical river courses lined with concrete flood control channels.
What This Case Was Not About
This case was not directly about the proposed storm water parcel tax by Los Angeles County’s Department of Public Works. This tax may be imposed on every property owner in seven watersheds in the county to reduce storm water pollution. This separate program, called the “Fresh Water/Fresh Beaches” project, is to comply with state Assembly Bill 2445. AB 2445 oddly requires only Los Angeles County, not the remainder of California, to capture storm water in catch basins for every 100-acre or larger urban watershed. However, this new tax must be put to the voters under Proposition 218.
AB 2445 is mainly a jobs program for low-income communities along the seven flood control “rivers” in Los Angeles County. Fifty to 90 percent of the monies from this proposed tax would go to Watershed Groups and Oversight Committees of water experts and only 10 percent would go the County Flood Control District.
What This Case Was Really About
Sean Hecht at the website legalplanet.wordpress.com calls this case the strangest environmental law Supreme Court case he has ever seen. The U.S. Solicitor General’s Office got involved as a friend of the court to represent the interests of the Obama administration. The Solicitor General’s office was arguing for returning — called remanding in law — the case back to the 9th Circuit to make a final decision. But from reading the transcript, it was apparent that both liberal and conservative justices weren’t buying that argument.
Reading the transcript to the case, it sounds like the old Abbott and Costello comedy routine, “Who’s On First?” Who’s polluting? We don’t know but we want to hold somebody responsible. But how can they be responsible when they already have a permit to discharge rainwater? Round and round such arguing went to the point you couldn’t tell who was on first base.
The arguments by the clean water advocates were criticized by the justices as “circular” (Chief Justice Roberts); as really “nothing to argue about” (Justice Sotymayor); as “putting into the discharge permit something it doesn’t require” (Justice Scalia); and as “once there is a violation” (of the permit) then “all the permittees are liable “ which “can’t be” (Justice Kennedy).
This complicated and bizarre case apparently had a hidden agenda. If the clean water advocates could prevail, then this could have established a legal basis for imposing a storm water tax on everyone without having to put it to a vote. In California, voter approval is required for all taxes. Storm water capture is the new fashionable way to justify taxation for jobs programs disguised as public works projects. Even the liberal justices balked because there was no reasonable way to identify the pollution source or how much pollution was coming from one source.
The Associated Press reported that the “only real question Tuesday was whether the justices would end the case or give it back to the 9th U.S. Circuit Court of Appeals.” The latter seems unlikely.
A common saying is that if something doesn’t seem to make much sense on its face, the real reason is that there is a money grab behind it. This court case makes no sense, and the money grab has been cloaked as a clean water and public health issue. And that’s no laughing matter.
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The following first appeared in City Journal California. JAN. 6, 2012 By STEVEN GREENHUT On December 29, 2011, the California