Today, the U.S. Supreme Court issued its opinion in Los Angeles County Flood Control District v. Natural Resources Defense Council.  I've blogged about this case before, noting that the Supreme Court's grant of review in this case was based on a completely mistaken premise.  (If you're unfamiliar with the case, the linked post explains in detail what the case is about, and may be useful for context.)

The Court compounded its error today, reversing the Ninth Circuit in a very short, unanimous opinion.  The Court said that because of a legal holding in a prior Supreme Court case, South Florida Water Management District v. Miccosukee Tribe of Indians, the Ninth Circuit's analysis in this case was wrong.  But as I've noted before, that that holding has nothing to do with the current case.  And, actually, the Court didn't even make that holding in the prior case.  Along with Rhead Enion, I filed a brief in the Supreme Court explaining the first problem, and another law professor filed a brief explaining the second problem.  Bottom line: even if the Ninth Circuit got its analysis wrong - and I think at this point most observers agree that the Ninth Circuit's opinion was flawed in some way - the ways in which the Ninth Circuit erred had nothing at all to do with the Supreme Court opinion here.

Here's a quick summary of the facts: The Los Angeles County Flood Control District manages a stormwater system that conveys urban runoff into the Los Angeles River (which is itself partially encased in concrete channels to facilitate flood control) and other local waterways, and ultimately into the Pacific Ocean.  This runoff is responsible for a significant proportion of our water pollution.  The District, along with more than 80 other municipalities, has a permit under the Clean Water Act that forbids it from causing or contributing to exceedances of water quality standards.  But there is very little monitoring that would confirm any violations; in fact, there's only one monitoring station in the Los Angeles River, and none at the outfalls flowing into the River from the stormwater system.

The monitoring has, however, confirmed pollution in the River in excess of the standards., and there's really no question that the District's pollution discharges contribute to that pollution.  NRDC and Los Angeles Waterkeeper sued the District to hold it liable for causing or contributing to the exceedances.  But the trial court found that there wasn't sufficient evidence to connect Read more of this post