Clean Water Act cases on docket as justices return

This story was updated at 3:52 p.m. EDT.

With the Supreme Court about to regroup for its new term, a familiar storyline looks set to play out in two Clean Water Act cases scheduled for argument.

It's an oft-repeated tale about the high court -- which reconvenes for oral arguments on Oct. 1 -- and its relationship with the San Francisco-based 9th U.S. Circuit Court of Appeals.

The plot: Environmental groups file a lawsuit against a government agency or business interest. The case ends up before the 9th Circuit, which is often castigated by conservatives as being too sympathetic to environmental interests. The appeals court rules in favor of the environmental group. The losing party then seeks Supreme Court review. The more conservative high court then reverses or vacates the 9th Circuit, perhaps lobbing some colorful criticism in the direction of the lower court in the process.

John Cruden, president of the Environmental Law Institute, jokes that the Supreme Court has a separate filing box for 9th Circuit environmental decisions so the justices can give them extra-special attention.


The high court "takes a disproportionate number of cases from the 9th Circuit," he said.

The two Clean Water Act cases, to be argued the first week of December, look likely to fit the pattern in most respects, court watchers say.

The more high-profile of the two cases concerns whether stormwater that washes off logging roads is subject to permitting. The other focuses on whether a California water district is liable for the discharge of polluted stormwater into two rivers. In both, the appeals court did indeed rule in favor of environmental groups. The high court promptly took notice and is expected to reverse or vacate.

The logging road case -- actually two cases, Decker v. Northwest Environmental Defense Center and Georgia-Pacific West Inc. v. Northwest Environmental Defense Center, that were consolidated -- has already generated considerable interest. It is by some measure the biggest environmental issue before the court in the coming term. The state of Oregon and the timber industry want a 2010 9th Circuit ruling reversed. A total of 31 state attorneys general support the effort.

The 9th Circuit held that logging-road operators should be required to apply for National Pollutant Discharge Elimination System (NPDES) permits, provoking a political backlash in Congress and in affected states. EPA has since announced plans to issue a rule that would confirm that such runoff is not subject to permitting (Greenwire, May 22).

Tim Bishop, the Mayer Brown attorney arguing the case for the timber industry, described it as "extraordinary" for the 9th Circuit to "go back 35 years and upend this settled reading that the expert agency came up with."

The existing system, in which states oversee logging roads by adopting "best management practices," has been a success, Bishop added. "I don't think there's any dispute that [best management practices] are taken very seriously by the states," Bishop said.

There's a "pretty small" chance of the 9th Circuit being upheld, according to Arthur Hellman, an expert on the court at the University of Pittsburgh School of Law.

The second Clean Water Act case, Los Angeles County Flood Control District v. Natural Resources Defense Council, is not as high-profile. It concerns a claim made by the Los Angeles County Flood Control District that it should not be held liable for polluted stormwater that is discharged into the Los Angeles and San Gabriel rivers.

Experts expect the court to at least vacate the 9th Circuit ruling, largely because there is a major concern that there were factual errors in the court's opinion.

In an amicus brief supporting neither side, U.S. Solicitor General Donald Verrilli wrote that the appeals court had most likely "misunderstood where the monitoring stations are located in relation to the rivers."

He recommended that the court vacate the 9th Circuit decision and remand it to the district court for further proceedings.

Hellman thinks the court will likely take that advice on the grounds that the 9th Circuit "didn't quite get the facts right."

Human rights, property rights

There are two other cases the court has decided to review so far that also touch upon environmental or energy issues. Both will be argued next week.

In Kiobel v. Royal Dutch Petroleum, to be argued on the first day of the term, the court will tackle whether oil companies and other multinationals can be sued in U.S. courts for alleged human rights abuses that occur overseas. Then, on Oct. 3, the justices will consider in Arkansas Game and Fish Commission v. United States whether the Arkansas Game and Fish Commission deserves compensation for flood damage caused by the Army Corps of Engineers.

The human rights case is one of the most closely watched of the cases the court has agreed to hear so far. The plaintiffs are Nigerians who live in the United States suing Royal Dutch Petroleum Co. -- the former name of one part of the Anglo-Dutch company now known as Royal Dutch Shell PLC -- over its conduct in Nigeria during the 1990s. During that period, the government cracked down on activists in the Ogoni region who have for years protested about the environmental impact of oil exploration.

The legal question is whether plaintiffs can sue in U.S. courts in such circumstances using a law known as the Alien Tort Statute. It is the court's second attempt to resolve the case, having initially heard arguments last term on the question of whether corporations can be held liable under the statute. Now, after the court asked for extra briefing, the attorneys will argue to what extent conduct that occurs overseas is covered by the statute.

Lawyers familiar with the issue think Shell is likely to win, although what is less clear is how far the court will go in limiting the scope of the statute.

Regardless, "it's going to be a tough one for the plaintiffs to win," Neal Katyal, an attorney at Hogan Lovells who has filed a brief in support of Shell on behalf of the U.S. Chamber of Commerce, said at a Georgetown Law Center event last week.

On the broader issue of whether the justices will find a continuing role for the statute as a vehicle for human rights claims, Marco Simons, an attorney at Earthrights International, which supports the plaintiffs, said that "there's no indication they intend to upset the settled understanding of the Alien Tort Statute, which has been applied by courts for over 30 years."

To reach another outcome, the court "would have to do something weird," he added.

The Arkansas case, technically a property rights rather than an environmental issue, focuses on whether the state wildlife agency is due compensation under the takings clause of the Fifth Amendment for damage caused to timber in the Black River Wildlife Management Area in the northeast part of the state.

The damage was caused by the Army Corps' management of the Clearwater Dam upriver. The state says that between 1993 and 2000, the Army Corps tinkered with the water flow from the dam, which led to flooding that eventually killed off many mature oak trees in the preserve.

The court is set to decide whether a temporary flooding -- albeit one that is repeated -- can constitute a permanent taking that requires compensation.

The case is being closely watched by property rights advocates and various interested business groups, including the National Association of Home Builders and the American Farm Bureau Federation, both of which joined a brief filed by the National Federation of Independent Business.

"Government assumes a categorical duty to pay just compensation for any physical invasion of private property, regardless of how long the ensuing occupation persists," attorney Karen Harned wrote in the brief.

Petitions pending

The cases slated for oral argument to date are just a portion of the total cases the court will hear in the coming term. It will continue to add cases to its argument calendar over the coming months, meaning there is a possibility of more environment and energy-related cases being added.

One expected petition that would attract considerable interest would be one filed by business groups and states seeking review of the U.S. Court of Appeals for the District of Columbia Circuit decision upholding the Obama administration's greenhouse gas regulations (Greenwire, June 27).

There is also a petition pending challenging a 10th U.S. Circuit Court of Appeals ruling that upheld the Clinton-era "roadless rule" that barred most road building and logging on nearly 60 million acres of national forests (E&ENews PM, Oct. 21, 2011). The court could announce if it will take that case as soon as tomorrow.

In general, the current Supreme Court "continues to take an interest in environmental cases," said Richard Frank, director of the California Environmental Law and Policy Center at the University of California, Davis, School of Law. But he noted that, when it comes to the Clean Water Act, the "focus is on statutory interpretation" rather than broad constitutional issues.

Like others, Frank also cannot help noticing the attachment to 9th Circuit rulings. He, too, foresees a hostile reception when the Clean Water Act cases are argued.

"The 9th Circuit environmental jurisprudence has not fared well in the Supreme Court," he said.

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