January 04, 2013

Earthrise Faculty and Students Defend the Clean Water Act at the US Supreme Court

1/4/13 - Earthrise Law Center faculty and students gave their time and expertise to defend the Clean Water Act by writing amicus briefs related to two significant environmental cases in the Supreme Court’s 2012-2013 term.

Earthrise Law Center faculty and students gave their time and expertise to defend the Clean Water Act by writing amicus briefs related to two significant environmental cases in the Supreme Court’s 2012-2013 term. On December 3 and 4, 2012, the Court heard argument regarding stormwater pollution and the reach of the federal Clean Water Act.

The plaintiff in the first case is the Northwest Environmental Defense Center (NEDC), which, while a separate 501(c)(3) entity, is affiliated with the law school. The plaintiffs in the second case are the Natural Resources Defense Council and the Los Angeles Waterkeeper.

Faculty and students involved with the Earthrise Law Center’s Appellate Project wrote amicus briefs regarding key jurisdictional issues in the two cases. These included Professors Allison LaPlante and Craig Johnston, and third-year students Lia Comerford, Maggie Hall, and Meredith Price. Recent alum Marla Nelson (’12) also helped with the brief in the NRDC case. Formerly known as the Pacific Environmental Advocacy Center, or PEAC, Earthrise Law Center is a legal clinic within the Environmental and Natural Resources Law program at Lewis & Clark Law School. Earthrise provides low- or no-cost legal services for conservation groups, while also training and educating law students through direct involvement in cases. Students play a vital role at Earthrise by participating in all phases of the litigation process, including drafting motions and pleadings, formulating arguments and strategy, and contributing to discussions with clients and opposing parties. Through this work, students gain real-world experience in public interest environmental law.


The Cases Before the Court

In Decker/Georgia-Pacific West, et al. v. Northwest Environmental Defense Center, NEDC brought a citizen suit under section 505 of the Clean Water Act against Oregon forestry officials and timber companies, alleging that the defendants were discharging pollutants without NPDES permits, in violation of the Act. NEDC alleged that man-made water collection systems along logging roads regularly channeled and discharged polluted stormwater into the South Fork Trask River and the Little South Fork of the Kilchis River, and that the defendants never sought or received NPDES permits for such discharges. The U.S. District Court of Oregon granted the defendants’ Motion to Dismiss, and the Ninth Circuit reversed.

In asking the Supreme Court to review the Ninth Circuit’s decision, both the timber industry and state petitioners contested the Ninth Circuit’s reading of the statute and regulations; they also took issue with the Ninth Circuit failure to defer to EPA’s interpretation of its own regulations. Earthrise Staff Attorney and Clinical Professor Allison LaPlante authored a brief on behalf of leading environmental law professors from across the country regarding the jurisdictional question in the NEDC logging roads case. Specifically, the amicus brief argued that the Court should not adopt an expansive interpretation of the statute’s judicial review provision.

On Friday afternoon at 5pm (before the Monday argument), EPA issued a new rule under its stormwater program that it thought would more clearly exempt the timber-industry petitioners. This shifted the focus of the oral argument to questions regarding the implications and legality of the new rule. This new focus placed increased emphasis on the issue that Earthrise had addressed in its amicus brief, which dealt with whether rules creating regulatory exemptions are the kinds of rules that may only be challenged directly in the Court of Appeals within 120 days after promulgation. On this “jurisdictional” issue, the case has potentially far-reaching implications for regulated entities and concerned citizens regarding when and where they must seek review of EPA Clean Water Act regulations or interpretations thereof.

In L.A. County Flood Control District v. NRDC, NRDC and L.A. Waterkeeper brought suit against Los Angeles County and Los Angeles County Flood Control District regarding L.A.’s Municipal Separate Storm Sewer System. According to the website EcoWatch: “The purpose of this case is to address the number one source of pollution in heavily urbanized Los Angeles. Storm water flows over streets, parking lots and other “hardscapes,” carrying heavy metals, chemicals, trash and bacteria and viruses directly to the waterways we use for fishing, swimming and drinking. Not only do more than one million people get sick from swimming in polluted stormwater each year, pollution has an incredible impact on our coastal economy in southern California that cannot be ignored.”

The groups alleged that the defendants were discharging polluted stormwater collected by the storm sewer system into four waterbodies in Southern California, in violation of water quality standards and the applicable NPDES permit. The Ninth Circuit reversed the district court’s ruling in favor of the defendants. However, the Ninth Circuit agreed with the district court that the groups were required to submit additional evidence regarding the District’s contribution to the permit violations beyond just the monitoring. Then the Ninth Circuit found the District liable for violations in two rivers because monitoring stations for each river are located in a section owned and operated by the District. In the L.A. County case, Earthrise Clinical Director and Professor Craig Johnston authored an amicus brief, also on behalf of leading law professors, on the “addition of a pollutant” question, and its implications for the Clean Water Act’s dredge and fill program.

After completing the amicus briefs and following the cases closely, Professors Johnston and LaPlante, accompanied by the three students who worked with them on the briefs, headed to Washington D.C. to attend the back-to-back oral arguments. Everyone was anxious to hear the questions on the justices’ minds, and to see how the issues they worked on came to light at oral argument. All three of the students were thrilled at having the opportunity to attend a Supreme Court oral argument and see some of the best advocates in the country live, in action. For Maggie Hall, the biggest highlight occurred when Justice Ginsburg specifically referenced the Earthrise Brief which she helped to write: “We tried to get the Court’s attention with our brief. And we did. That was certainly a thrill.” For Meredith Price, it was also her first trip to the Capitol: “As a native Oregonian, I’d never ventured to Washington, D.C. prior to attending the Supreme Court oral arguments. Watching the advocates being peppered with questions by the Court, so much so that the average response time is in the seconds, was fascinating. The fact that Lewis & Clark and Earthrise were willing to provide the students that worked on this project with a ‘full experience’ by sponsoring our trip speaks to the quality of my education at Lewis & Clark. It was a tremendous experience.”