Supreme Court also Checks in on Clean Water

As I mentioned several days ago (October 8), environmental law is a favorite topic of mine, and the U.S. Supreme Court doesn't take that many environmental law cases. Well, a friend and colleague reminded me that the Supreme Court is taking a look at another important environmental law issue this term in the clean water realm.

On December 4, 2012, oral argument will be held in the matter of Los Angeles County Flood Control District v. Natural Resources Defense Counsel, et al. This case involves polluted waters in Los Angeles County. Here the Court will decide whether the County Flood Control District is liable for Clean Water Act permit violations, for the simple reason that someone else's pollutants passed through its flood control channel.

In Southern California, we don't see a lot of rain. Pollutants accumulate on the roadways in all of the cities, on the parking lots of businesses, churches and schools, and on the driveways and rooftops of homeowners. When the occasional deluge comes, these pollutants wash into storm drains, and eventually make their way into the storm sewer system, which the Flood Control District operates throughout the County. These waters flow through the sewer system into the L.A. River and San Gabriel River, among others, and eventually wash into the Pacific Ocean.

Several years of testing within the Flood Control District's sewer system reveals high levels of pollutants (above permitted levels), and the Natural Resources Defense Counsel has taken legal action. Now, the Flood Control District, which did not generate these pollutants, faces sole liability for them because the pollutants passed through its sewer. It goes without saying that this ruling could have massive implications for cities, counties and flood control districts nationwide, which are invariably responsible for providing flood control and storm sewer systems within their jurisdictions.

A negative ruling against the Flood Control District could be a big win for clean water everywhere, as it will likely assure that sewer operators treat everyone's pollutants before final discharge. However, it could be a huge hit for sewer operators (who generally didn't generate the pollutants), and eventually for cities and their taxpayers that use storm drains upstream, as they will likely have to subsidize these new treatments and liabilities.

Suffice to say that this is a classic situation where the polluters have effectively externalized their costs on the public at large. While few would dispute the need to actually clean up the pollutants, this is another situation where government and the people are being asked to collectively carry the load when the identity of specific polluters is often unknown, and there may be no good way to effectively target appropriate clean-up measures at the source.