It Takes a Village: Lewis & Clark Law Students, Alums and Faculty Involved in Two of Supreme Court’s Most Important Environmental cases of Fall Term 2012
February 04, 2013
The extended Lewis & Clark community played key roles in the two biggest environmental cases of the Supreme Court’s fall term. On December 3 and 4, 2012, the United States Supreme Court heard arguments in two significant cases regarding stormwater pollution and the reach of the federal Clean Water Act. In each case, LC law school faculty, students, and alumni were actively involved, from gathering water samples, briefing the merits, and writing amicus briefs to attending the oral arguments.
The plaintiff in the first case is the Northwest Environmental Defense Center (NEDC). NEDC was started by LC students and faculty in 1969 and, while a separate entity from the law school, to this day works closely with student volunteers. NEDC’s staff is comprised of LC law graduates: Mark Riskedahl (‘00), Executive Director; Andrew Hawley (‘03), Staff Attorney; and Marla Nelson (‘12), Legal Fellow.
In Decker/Georgia-Pacific West, et al. v. Northwest Environmental Defense Center, NEDC brought a citizen suit under section 505 of the Clean Water Act against Oregon forestry officials and timber companies, alleging that the defendants were discharging pollutants without permits in violation of the Act. NEDC alleged that man-made water collection systems along logging roads regularly channeled and discharged polluted stormwater into the South Fork Trask River and the Little South Fork of the Kilchis River, and that the defendants never sought or received permits for such discharges. The U.S. District Court of Oregon granted the defendants’ Motion to Dismiss, and the Ninth Circuit reversed.
LC Law students were involved in this NEDC litigation from the very beginning: gathering water samples, looking at culverts and taking photos and videos. Liz Crosson (’08) was one of those students, and is now the Executive Director of L.A. Waterkeeper (one of the plaintiffs in the second case along with Natural Resource Defense Council). In addition, six LC student volunteers were involved in briefing the legal issues, including Laura Kerr, a law clerk with NEDC.
In asking the Supreme Court to review the Ninth Circuit’s decision, both the timber-industry and state petitioners contested the Ninth Circuit’s reading of the statute and regulations; they also took issue with the Ninth Circuit’s failure to defer to EPA’s interpretation of its own regulations. Allison LaPlante, Earthrise Law Center Staff Attorney and LC Clinical Professor, authored a brief on behalf of leading environmental law professors from across the country regarding the jurisdictional question in the NEDC case. Third-year students Lia Comerford and Meredith Price assisted with the amicus brief argument that the Court should not adopt an expansive interpretation of the statute’s judicial review provision.
Earthrise Law Center (formerly known as PEAC) is a legal clinic within the Environmental and Natural Resources Law program at Lewis and Clark Law School. Earthrise provides low or no cost legal services for conservation groups, while also training and educating law students through direct involvement in cases. Students play a vital role at Earthrise by participating in all phases of the litigation process, including drafting motions and pleadings, formulating arguments and strategy, and contributing to discussions with clients and opposing parties. Through this work, students gain real-world experience in public interest environmental law.
The Western Resource Legal Center (WRLC) is a non-profit legal organization based in Portland which provides internship opportunities to Lewis & Clark students interested in resource development. Caroline Lobdell, adjunct professor and LC alum as well as the Executive Director of WRLC, co-authored an amicus brief in the NEDC case on behalf of the American Forest Resource Council and other timber industry organizations. LC law students Grant Gilmore, Bryce Adams, Bobby Schroeder and Kelci Paiva were very involved, with each student drafting a section of the brief which was then reviewed and edited by Caroline.
Other LC connections to the NEDC case include: Dean Emeritus Jim Huffman who filed an amicus brief on behalf of the petitioners; and LC alums Nina Bell, of NW Environmental Advocates, and James Coon who filed an amicus brief on behalf of respondents. Nina also coordinated an amicus brief on behalf of 15 retired EPA managers.
In L.A. County Flood Control District v. NRDC, NRDC and L.A. Waterkeeper brought suit against Los Angeles County and Los Angeles County Flood Control District regarding L.A.’s Municipal Separate Storm Sewer System. Liz Crosson, Executive Director of L.A. Waterkeeper and an LC alum, played a key role at all stages of the litigation. According to the website EcoWatch, the case addresses “the number one source of pollution in heavily urbanized Los Angeles. Storm water flows over streets, parking lots and other ‘hardscapes,’ carrying heavy metals, chemicals, trash and bacteria and viruses directly to the waterways we use for fishing, swimming and drinking. Not only do more than one million people get sick from swimming in polluted stormwater each year, pollution has an incredible impact on our coastal economy in southern California that cannot be ignored.”
The groups alleged that the defendants were discharging polluted stormwater collected by the storm sewer system into four waterbodies in Southern California, in violation of water quality standards and the applicable NPDES permit. The Ninth Circuit reversed the district court’s ruling in favor of the defendants. However, the Ninth Circuit agreed with the district court that the groups were required to submit additional evidence regarding the District’s contribution to the permit violations beyond just the monitoring. Then the Ninth Circuit found the L.A. Flood Control District liable for violations in two rivers because monitoring stations for each river are located in a section owned and operated by the District.
In the L.A. County case, Earthrise Clinical Director and LC Professor Craig Johnston authored an amicus brief, also on behalf of leading law professors, on the “addition of a pollutant” question, and its implications for the Clean Water Act’s dredge and fill program. Third-year student Maggie Hall together with recent alum Marla Nelson (’12) worked closely with Professor Johnston on the brief.
After completing the amicus briefs and following the cases closely, Professors Johnston and LaPlante secured law school funding so that the three students who worked with them on the briefs could accompany them to D.C. to attend the back-to-back oral arguments. The students were especially thrilled when Justice Ginsburg specifically referenced one of the Earthrise briefs.
The Supreme Court recently issued an opinion in the L.A. County case reversing and remanding to the Ninth Circuit. Supplemental briefs in the NEDC case were filed in late January addressing the effect on the case of an EPA amendment (just before oral argument) to its stormwater discharge rule. Regardless of the outcome in each case, there is no doubt that the extended village of LC had a significant role in preparing and briefing these important environmental issues for the court.