2011 Ninth Circuit environmental review.

• Position: Case Summaries I. Environmental Quality, p. 793-819

1. ENVIRONMENTAL QUALITY

1. Federal Water Pollution Control Act

   1. Natural Resources Defense Council, Inc. v. County of Los Angeles, 673 F.3d 880 (9th Cir. 2011).

   The Natural Resources Defense Council (NRDC) and Santa Monica Baykeeper (collectively, Plaintiffs) appealed the ruling of the United States District Court for the Central District of California granting summary judgment in favor of Defendants (1) who were alleged to have violated the Clean Water Act (CWA). (2) Plaintiffs alleged that Defendants discharged polluted stormwater runoff into four navigable waters of southern California: the Santa Clara River, Los Angeles River, San Gabriel River, and Malibu Creek (collectively, the Watershed Rivers). This discharge, Plaintiffs asserted, was in excess of the limitations imposed by Defendants' National Pollutant Discharge Elimination System (NPDES) (3) permit. The United States Court of Appeals for the Ninth Circuit reviewed the district court's judgment de novo and reversed the grant of summary judgment for Defendants regarding the Los Angeles River and San Gabriel River, but affirmed the grant of summary judgment regarding the Santa Clara River and Malibu Creek.

   Stormwater runoff is surface water generated by precipitation that flows over streets and other developed land. Unlike rainwater that runs over and permeates the soil, stormwater running over impermeable surfaces collects "suspended metals ... floatable trash, used motor oil, raw sewage, pesticides, and other toxic contaminants.-4 In this case, Defendants' municipal separate storm-sewer systems (MS4s) collected the stormwater and--without passing the stormwater through wastewater treatment facilities--drained it into the Pacific Ocean. This drainage system is very complex and its infrastructure includes 500 miles of open channels, 2,800 miles of storm drains, and no map exists specifying the locations of the storm drains. (5) However, it is known that stormwater is channeled through these four Watershed Rivers before reaching the Pacific Ocean.

   Plaintiffs alleged that Defendants violated the CWA by allowing untreated and heavily polluted stormwater to flow into several navigable waters that end in the Pacific Ocean--also a navigable water. The purpose of the CWA is "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." (6) To achieve that end, the CWA prohibits any person from discharging any pollutant from a point source into navigable waters unless such discharge is in compliance with the CWA. (7) A discharge of a pollutant includes any addition of a pollutant to a navigable water from a point source. (8) Under the CWA, the MS4s operated by the Defendants are considered point sources. (9) The only way a person or entity may add pollutants to a navigable water is if they comply with the CWA by obtaining an NPDES permit limiting the type and quantity of pollutants that can be discharged. (10)

   The California State Water Resources Control Board for the Los Angeles Region issued Defendants an NPDES permit (Permit) to discharge stormwater in their county. (11) The Permit required Defendants to implement a Stormwater Quality Management Program (SQMP), (12) and also vested Defendants with legal authority to control and prohibit discharges into the MS4. (13) The Permit employed mass emission monitoring stations, along with other means, to monitor pollution in the four Watershed Rivers. (14) For the four Watershed Rivers in this case, mass emission monitoring detected high levels of pollutants being discharged on multiple occasions. The monitoring stations for the Los Angeles and San Gabriel Rivers are located within the channelized portion of the MS4 owned and operated by Defendants; whereas the monitoring stations for Malibu Creek and the Santa Clara River are not.

   Defendants did not dispute that water quality exceedances occurred between 2002 and 2008 at the monitoring stations for the four Watershed Rivers. Nevertheless, the district court held that Plaintiffs had failed to establish the liability of Defendants because they failed to present evidence as to who was responsible for the stormwater discharge. (15) Although the district court noted that Defendants were responsible for pollutants in the MS4 when they passed mass-emission stations, that did not necessarily establish that Defendants were responsible for the "discharge" of the pollution within the meaning of the CWA. (16) Consequently, the Ninth Circuit analyzed: 1) whether an exceedance at the mass emission monitoring stations constituted a Permit violation, and if so, 2) whether pollutants discharged by the Defendants caused or contributed to the water quality exceedances.

   First, the Ninth Circuit addressed whether the "exceedances" at the mass emission stations constituted a Permit violation. Section 2.1 of the Permit mandated that "discharges from the MS4 that cause or contribute to the violation of Water Quality Standards or water quality objectives are prohibited. "(17) Defendants argued that municipal discharges were not to be held to the same regulatory standards as private entities under NPDES permits. The Ninth Circuit found otherwise. The court recognized that Congress expanded NPDES permitting so as to apply CWA requirements to municipal dischargers and noted that the United States Court of Appeals for the D.C. Circuit has since invalidated the section 402 exemptions for MS4s promulgated by the United States Environmental Protection Agency (EPA). (18) Furthermore, EPA did not promulgate any regulations targeting MS4 dischargers after the D.C. Circuit invalidated the exemptions, (19) and Congress amended the CWA in 1987 to specifically regulate discharges from MS4s. (20) Thus, in contrast to Defendants' claim, the court concluded that NPDES permits are enforceable against municipalities.

   Likewise, the Ninth Circuit held that mass emission monitoring is a valid enforcement mechanism against municipal dischargers. To hold otherwise, the Ninth Circuit found, would "emasculate the Permit" in a manner unsupported by case law or textual analysis. (21) The Permit incorporated the Water Quality Control Plan for the Los Angeles Region (the Basin Plan), which set water quality standards for contaminants for the Watershed Rivers. Moreover, there was no safe harbor provision in the Permit. Instead, Part 6.D of the Permit required municipal compliance/2 Consequently, mass emission monitoring validly measures compliance with the Permit, and Permit violations constitute CWA violations.

   Finally, the Ninth Circuit addressed whether there was sufficient evidence in the record to demonstrate that Defendants had discharged stormwater that caused or contributed to water quality violations. Although the district court found the evidence lacking as to all four Watershed Rivers, the Ninth Circuit held that the evidence was sufficient regarding the Los Angeles and San Gabriel Rivers, but not for the Santa Clara River or Malibu Creek. The Permit specifies that a "discharge" from the MS4 that causes or contributes to the violation of water quality standards is prohibited, (23) and a "discharge" is any addition of a pollutant to a navigable water from a point source. (24) Here, the MS4 is a "point source" (25) and the four Watershed Rivers at issue are all "navigable waters." (26) Thus, a discharge from the MS4 into any of the Watershed Rivers is a violation of the CWA.

   At issue, then, were Defendants' contentions that they merely transported the pollutants, did not discharge them, and that it would be impossible to pinpoint who was actually responsible for the discharges. In response, the Ninth Circuit noted that the mass emission measuring stations for the Los Angeles and San Gabriel Rivers are actually located within the section of the MS4 owned and operated by Defendants. Consequently, when pollutants were detected, they had not yet exited the point source into navigable waters. As such, Defendants had control over the polluted stormwater where it was measured, and thereby caused or contributed to the exceedances when that water was discharged into the rivers. Furthermore, the MS4 is a man-made construction, not a naturally occurring Watershed River, so a discharge occurred when the polluted stormwater flowed out of the channels of the monitoring stations and into the navigable waterways. Such action constituted a violation of the CWA because the CWA "bans 'the discharge of any pollutant by any person' regardless of whether that 'person' was the root cause or merely the current superintendent of the discharge." (27)

   In sum, the Ninth Circuit reversed the district court's grant of summary judgment on two of Plaintiffs' claims and affirmed the grant of summary judgment on the remaining two claims. The court held that Defendants discharged pollutants into the Los Angeles and San Gabriel Rivers because the mass emission stations were concretely within the Defendants' MS4 control. Conversely, the court held that Plaintiffs had failed to establish a relationship between Defendants' conduct and the MS4 pollution detected at the mass emission stations of the Santa Clara River and Malibu Creek. Consequently, Plaintiffs were entitled to summary judgment regarding their Los Angeles River and San Gabriel River claims, and Defendants were entitled to summary judgment regarding the Santa Clara River and Malibu Creek claims.

2. Clean Air Act

   1. Jensen Family Farms, Inc. v. Monterey Bay Unified Air Pollution Control District, 644 F.3d 934 (9th Cir. 2011).

      Plaintiff, Jensen Family Farms, Inc. (Jensen), a for-profit agricultural corporation, (28) brought suit against Monterey Bay Unified Air Pollution Control District (District), a political subdivision of the State of California, challenging District rules regulating diesel-powered engines. Seeking permanent injunctive relief, Jensen alleged that: 1) the Clean Air Act (CAA) (29) preempted District Rules 220, 310...