Tuesday, November 27, 2012

The Other Clean Water Act Case: One of Five Cases Relevant to Property Owners Before the U.S. Supreme Court

With all of the environmental and land use cases on the Court's docket this term, it's shaping up to be an important year for property owners (and maybe another tough year for environmental interests). It's may also be a year of correction for the Ninth Circuitsince several of these cases are out of that Circuit. It's unusual for the Court to hear so many of this type of case in the same term; it's unclear whether this is just a coincidence, or if there is something else driving their interests. These cases, with links to my commentary about them, are below:
  • Arkansas Game & Fish Commission v. United States, No. 11-597 (cert. granted Apr. 2, 2012, argued Oct. 3d, 2012), concerning the federal government's taking of timber by flooding.
  • Decker v. NEDC, No. 11-338 (cert. granted June 25, 2012, to be argued Dec. 3, 2012) (consolidated with Georgia-Pacific West, Inc. v. NEDC, No. 11-347), about the viability of the EPA's Silvicultural Rule under the Clean Water Act.
  • Los Angeles County Flood Control District v. NRDC, No.11-460 (cert. granted June 25, 2012, to be argued Dec. 4, 2012), which will consider whether the District should be held liable under the Clean Water Act for polluted stormwater that is discharged into two rivers.
  • Koontz v. St Johns River Water Management District, No. 11-1447 (cert. granted Oct. 5, 2012, to be argued Jan. 15, 2012), regarding a government's failed attempt to exact personal property in connection with a land use permit.
  • Horne v. U.S. Department of Agriculture, No. 12-236 (cert. granted Nov. 20, 2012), considering whether a New Deal agricultural statute takes property of raisin growers without compensation.
Next week, the U.S. Supreme Court will hear oral arguments in two of these cases, both of which concern the Clean Water Act. My readers know that I've followed the first very closely because, here in Florida, so much of my practice representing agricultural landowners relates to forest landowners. And, sure, it doesn't hurt that I'm in the fifth generation of my family in a profession dealing with forestry. Those cases are the forest roads litigation (consolidated: Decker v. NEDC, No. 11-338, and Georgia-Pacific West, Inc. v. NEDC, No. 11-347).

The second case is the only case among this bunch that I haven't discussed in any detail: Los Angeles County Flood Control District v. NRDC, No.11-460 (cert. granted June 25, 2012). I have not spent much time discussing this case because it does not directly affect my main audience of private landowners. The case could, however, have implications for some private landowners, as indicated by the National Association of Home Builders' amicus brief. As it points out, "[f]or all its complexity, the Clean Water Act is simple in one respect-it creates liability for a person who adds pollutants to 'a water of the United States' through a 'point source.'" The main issue I see that could ensnare a private landowner is that, if the Supreme Court rules against the District, then those who merely convey pollutants into a water of the United States could be exposed to liability, even if others actually create the pollutants. However, as the Solicitor General of the United States argued, no matter what the ruling in this case, the Supreme Court should be able to confine it to the unique facts of this case.

You can follow the case's progress at SCOTUSblog, or read here for much more depth about the legal issues in this case.