The Supreme Court has unanimously sided with Los Angeles-area governments that are fighting a lawsuit over pollution from urban storm water runoff.
Justice Ruth Bader Ginsburg wrote for the court in a narrow ruling issued Tuesday that the 9th Circuit wrongly ruled for environmentalists in a lawsuit against the Los Angeles Flood Control District.
At issue is who is responsible for billions of gallons of polluted water that flow into the Los Angeles and San Gabriel rivers, and eventually the Pacific Ocean, after heavy rainfalls.
When the Supreme Court agreed to hear the dispute, it did so on a narrow question: does the flow of water out of a concrete channel within a river rank as a “discharge of a pollutant”?
In an unusual twist, when it came time to argue the case, everybody agreed that the answer to that question, decided in an earlier Supreme Court case, is no, you’re not discharging pollution if you’re just sending it around within the same water system.
Environmentalists, who wanted to preserve the 9th Circuit’s ruling holding the county responsible for pollution, argued that in misunderstanding where the monitoring stations in the storm system are, the appellate panel may have gotten some facts wrong, but was right on the law.
“The county has managed to game the system in a way that has allowed the pollution of our waterways to go unaddressed for many years,” said Liz Crosson, Executive Director of L.A. Waterkeeper. "The county is the largest source of stormwater pollution to local waterways, and today it has escaped accountability, but only temporarily.”
Lawyers for the county’s flood control district pushed for the lower court’s decision to be overturned.
“This was a short but important opinion for the District, reinforcing that it was fulfilling its obligations under the Clean Water Act,” said Timothy Coates, a lawyer with Greines Martin Stein & Richland who argued the case for the flood control district.
The court’s ruling sends the 5-year-old dispute back to the 9th Circuit for another hearing. But the specific set of rules the NRDC and LA Waterkeeper sued local governments to enforce, known as the MS4 permit, has been replaced since the dispute began.
Last month the Los Angeles Regional Water Quality Control Board approved a new permit, which includes more monitoring stations for pollution.
In addition, the Flood Control District has proposed to tax parcels of land in Los Angeles County based on size and impermeability. Officials say the revenue yielded by the tax would pay for green infrastructure runoff controls that would capture and treat rainfall as close to where it falls as possible.
While environmental groups were initially supportive of low-impact development rules, they say they remain wary about how well the program will work.
“The county owes it to residents and visitors alike to step up and control this pollution by utilizing the range of green infrastructure solutions that are available today,” said the Natural Resources Defense Council’s Steve Fleischli.
Next Tuesday, the Los Angeles County Board of Supervisors will consider whether to ask property owners to vote on the proposed stormwater parcel tax. If the plan’s approved, the county will count ballots later this spring.