Position:2017-2018 Ninth Circuit Environmental Review - Survey

    1. Clean Water Act

      1. Southern California Alliance of Publicly Owned Treatment Works v. U.S. Environmental Protection Agency, 853 F.3d 1076 (9th Cir. 2017).

        The Southern California Alliance of Publicly Owned Treatment Works (SCAP) petitioned the United States Court of Appeals for the Ninth Circuit for review under the Clean Water Act (CWA). (1) SCAP argued that the Ninth Circuit had original jurisdiction to review an United States Environmental Protection Agency (EPA) letter that objected to draft permits for water reclamation plants in Los Angeles. The Ninth Circuit, reviewing the issue de novo, dismissed the petition.

        California Regional Boards make the initial permitting decisions regarding the National Permit Discharge Elimination System (NPDES). (2) The Los Angeles Regional Board prepared and submitted draft NPDES permits for the water reclamation plants at issue to EPA for review. EPA responded to the draft permits with a formal objection letter. The Board, in response to the letter, revised the draft permit to satisfy EPA objections. The Board then proceeded to issue the revised permits for the water treatment plants. SCAP filed an administrative appeal of the Board's action. SCAP also filed the petition for review.

        The initial issue was whether the Ninth Circuit had jurisdiction to review the letter. The CWA provides for judicial review of agency decisions under certain circumstances. (3) Here, SCAP made two separate arguments for jurisdiction. SCAP argued that the letter provided the court jurisdiction under the section of the CWA that provides for federal appellate review of EPA actions approving or promulgating effluent limitations. (4) The court declined jurisdiction on these grounds for three reasons. First, as EPA noted in its argument, the Ninth Circuit already resolved this question in Crown Simpson Pulp Co. v. Costle (Crown I). (5) Crown /had rejected the proposal that an EPA veto of permits equals the promulgation of a new regulation. The court rejected SCAP's use of Iowa League of Cities v. Environmental Protection Agency (6) because factual differences made the analogy inapposite. In Iowa League of Cities, EPA responded to a general inquiry about the agency's policy. Here, however, EPA objected to a specific permit. The permit objection was an interim step, rather than a final binding order. In addition, the court reasoned that California, or the Los Angeles Board, could impose stricter restrictions on the treatment plants. If that occurred, EPA's objection letter would be irrelevant and moot.

        Second, SCAP argued that the objection letter was subject to jurisdiction under subpart F, (7) which provides for review of EPA actions that issue or deny any permit under the NPDES program. SCAP argued that EPA's objection letter denied the permits. SCAP cited Crown Simpson Pulp Co. v. Costle (Crown II), (8) which held that an EPA objection to effluent limitations in a permit effectively was a denial of the permit. (9) EPA countered that Crown II was not applicable to this issue because Congress subsequently amended the CWA and revised the procedures relating to that very issue. The Ninth Circuit agreed that the amendments changed the CWA and found that under the current statute, an EPA objection is no longer functionally similar to denying a permit. Complaints about the objection letter are therefore premature. The court held that the objection letter did not constitute an issuance or denial of the draft permits at issue.

        In sum, the Ninth Circuit found that SCAP's claims under the CWA lacked jurisdiction because the objection letter was neither an approval nor promulgation of a new rule nor an outright denial of the permit at issue in this case. Accordingly, the court denied the petition.

      2. United States v. Robertson, 875 F.3d 1281 (9th Cir. 2017).

        This action came as an appeal from a criminal conviction related to the extent of the government's jurisdiction to police United States waters under the Clean Water Act (CWA). (10) Joseph David Robertson (Defendant) appealed both an evidentiary finding in his first trial, which had resulted in a hung jury and mistrial, and his conviction in his second trial on several grounds. Defendant appealed after his second trial and conviction. Affirming in whole, the court reviewed de novo the challenged jurisdictional bounds of the CWA, the challenged evidentiary rulings, and the district court's decision to allow specific expert testimony for abuse of discretion. Between October 2013 and October 2014, Defendant excavated and constructed a series of ponds, which resulted in the discharge of dredged and fill material into the surrounding wetlands, as well as an adjacent tributary that flows into Cataract Creek, a tributary of the Boulder River (which is itself a tributary of the Jefferson River). The excavation and construction took place on National Forest System Lands and on a privately owned mining claim called Manhattan Lode. During that time, a United States Environmental Protection Agency (EPA) Special Agent warned Defendant that he likely needed permits for his activities, but Defendant never got them. After the Forest Service learned of his activities, a grand jury charged Defendant with three criminal counts. (11) Following the mistrial, Defendant was ultimately convicted on all three counts.

        The first of Defendant's five arguments on appeal was that the Government failed to establish proper CWA jurisdiction. The court started their examination with an extensive background on the statute and its congressionally stated purpose. (12) The court noted that the law in question was the CWA's prohibition on the discharge of dredge or fill material into "navigable waters" unless authorized by a permit from the Secretary of the Army through the United States Army Corps of Engineers (the Corps). (13) Violations carry possible penalties of fine, imprisonment, or both. (14) The main issue under examination by the court was the definition of "navigable waters" and the reach of the CWA The CWA defines "navigable waters" as "the waters of the United States, including the territorial seas." (15) For there to be CWA jurisdiction in Defendant's case, the areas that Defendant polluted had to be "waters of the United States."

        The court examined the controversial history of the relevant case law, indicating that Rapanos v. United Stated (16) was the central case. Rapanos was decided in a difficult 4-1-4 split. The plurality opinion settled on a definition that included only those "relatively permanent, standing or continuously flowing bodies of water 'forming geographic features' that are described in ordinary parlance as 'streams[,]... oceans, rivers, [and] lakes.'" (17) The plurality opinion excluded "channels through which water flows intermittently or ephemerally, or channels that periodically provide drainage for rainfall." (18) Most importantly, the plurality only included wetlands in CWA jurisdiction if two specific conditions were met: "the adjacent channels contains a 'wate[r] of the United States,'" and "the wetland has continuous surface connection with that water, making it difficult to determine where the 'water' ends and the 'wetland' begins." (19)

        Justice Kennedy penned the concurrence that gave the plurality its weight, and his test was the one that would go on to be used by the lower courts and applied by the court here. Kennedy's test was simpler and narrower (thus giving more deference to the Corps' own determination); it stated that CWA jurisdiction existed over wetlands when there was "a significant nexus between the wetlands in question and navigable waters in the traditional sense." (20) The court went on to note that in Northern California River Watch v. City of Healdsburg, (21) it likewise held Justice Kennedy's opinion controlled. (22)

        Defendant's main argument regarding the CWA jurisdiction issue was that Kennedy's test was not the controlling standard, and the trial court erred by basing the jury instructions on it. Defendant's argument was based on a recent Ninth Circuit decision, United States v. Davis, (23) which he claimed made the court's adoption of the Kennedy standard invalid. (24) The court disagreed with Defendant's argument, stating that the Supreme Court instructed the lower courts that when "a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, 'the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.'" (25) The court also noted that they are allowed to consider dissenting opinions when conducting their analysis.

        The court went on to conclude that the Davis case cited by Defendant did not preclude them from adopting the Kennedy standard. First, the court analyzed whether their adoption of the Kennedy standard in City of Healdsburg was "clearly irreconcilable" with Davis and found that it was not. (26) Second, the court considered whether Kennedy's standard was actually the narrowest grounds. The court concluded that, while the plurality and the concurrence were likely subsets of the dissent's opinion, Kennedy's was narrower because it restricted federal authority less. (27) Based on these determinations, the court concluded that the district court's finding of CWA jurisdiction was not in error.

        The court then addressed Defendant's second argument that the statutory term "waters of the United States" was too vague to be enforced under due process because Defendant could not have had "fair warning" of the meaning of the term. Defendant asserted he had not had fair warning because City of Healdsburg was no longer good law in light of Davis. The court found that Defendant did have fair warning that his conduct was criminal, because his conduct occurred at a time after City of Healdsburg but before Davis, and because Defendant failed to challenge the underlying...

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