Los Angeles County Flood Control District v. Natural Resources Defense Council, Inc. – Oral Argument – December 04, 2012

Media for Los Angeles County Flood Control District v. Natural Resources Defense Council, Inc.

Audio Transcription for Opinion Announcement – January 08, 2013 in Los Angeles County Flood Control District v. Natural Resources Defense Council, Inc.

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John G. Roberts, Jr.:

We’ll hear argument next in Case 11-460, Los Angeles Flood Control District v. The Natural Resources Defense Council.

Mr. Coates.

Timothy T. Coates:

Mr. Chief Justice, and may it please the Court:

In this case, the Ninth Circuit held that a discharge from a point source under the Clean Water Act occurred in the Los Angeles and San Gabriel Rivers based upon the fact that water moved from channelized portions of the Los Angeles and San Gabriel Rivers into what it termed, quote,

“naturally occurring portions of those rivers. “

The court emphasized, in fact, that the discharge occurred because it moved through the concrete portions.

And in the words of the court itself, found at the cert appendix at 44, it was, “ again discharged to the rivers ”, and the “ again ” meaning that it was prior — at prior time it was in the rivers.

This is completely contrary to the Court’s decision in Miccosukee Tribe, where the Court held that there cannot be a discharge for purposes of the MPDS permit program and the Clean Water Act based upon the mere transfer of water within a single body of water.

All the parties to this case agree that is the correct rule.

Virtually all the amici agree that is the correct rule.

And it’s our view that that is dispositive of this case.

It is the only live issue before this Court from the Ninth Circuit, and it dictates–

Sonia Sotomayor:

So why don’t we just remand and let it sort it out under the right understanding of the legal rule?

Which is basically what the Government is saying, with an added twist because it thinks there is another legal question that I think the Ninth Circuit has answered, but we could go back and forth on it.

Timothy T. Coates:

–Correct.

At minimum, a reversal is warranted, without a doubt, but I think given the record in this case is abundantly clear about what the claims were before the Ninth Circuit and what’s going on with these monitoring stations.

I mean, these monitoring stations are clearly within the rivers themselves.

There is just no dispute about that.

Even the Ninth Circuit’s opinion, like I said, the language of the opinion suggests that–

Sonia Sotomayor:

Everybody agrees.

Timothy T. Coates:

–Correct.

And the reason why I don’t think there is an open remand is because there is nothing further in the record really to argue about.

At minimum, of course, we would prefer reversal, and it would take an open remand.

But I think, given the record in this case, the only live claim before the Ninth Circuit was this discharge theory when they found it in the middle of rivers; and, that being resolved against the Respondents, there is no other live issue.

John G. Roberts, Jr.:

Well, it seems to me that they present a very direct syllogism.

You have a permit that sets these monitoring stations where they are.

The monitoring stations show exceedances, you have violated your permit.

What’s wrong with that?

Timothy T. Coates:

Well, because the nature of the monitoring here.

For example, when you look at the permitting question, it doesn’t say the monitoring of any permittee.

Timothy T. Coates:

If you look at the permit where it talks about the mass emissions monitoring stations, it talks about measuring discharges and compliance from the MS4, not any individual permittee’s MS4.

John G. Roberts, Jr.:

Right.

But I understand the argument to be that that’s the problem that your permit imposes on you; in other words, that this is where the monitoring station is supposed to be.

What is it monitoring if not discharges from the MS4, for which you’re responsible?

The Government suggests that there could be different rules about whether you have to show the allocation or if that’s your responsibility.

Timothy T. Coates:

Well, I think, again, the rules say that you look at the permit’s terms to interpret it.

And the Ninth Circuit did look at the permit’s terms.

I mean, it — it dealt with this argument, and it noted that there are several factors in the permit that suggest that it didn’t relieve the Respondents of the obligation of having to show an actual discharge of water–

John G. Roberts, Jr.:

Well, you don’t — you don’t question that there was an actual discharge.

The storm sewer system in Los Angeles hasn’t been shut down, right?

Timothy T. Coates:

–Correct.

But, again–

John G. Roberts, Jr.:

So there are discharges, right?

Timothy T. Coates:

–But not discharges of pollutants, and that’s what’s reported.

John G. Roberts, Jr.:

You don’t dispute that there was at least some small amount of pollutant, even below the permit level, from your point sources, do you?

Timothy T. Coates:

Well, we don’t know that.

But the — but the point I want to make–

John G. Roberts, Jr.:

Well, I’m asking you whether — I mean, isn’t it — doesn’t common sense suggest — you have asked in your permit for a limit on how much of a–

Timothy T. Coates:

–Sure.

John G. Roberts, Jr.:

–particular pollutant you can discharge.

Timothy T. Coates:

But, again–

John G. Roberts, Jr.:

You wouldn’t do that unless you expected to discharge some.

Timothy T. Coates:

–Right.

You might do it sometimes, you might do it others, you might do it in concentrations that would cause or contribute to the exceedances; but, you still have to have a discharge that causes or contributes to the exceedances.

John G. Roberts, Jr.:

Well, why did you put the monitoring sources where they are if that wasn’t what was going to measure your compliance with the permit?

Timothy T. Coates:

Because you’re required, in a system-wide permit like this, to suggest — to propose monitoring which is subject to the approval of the regulatory agency.

And it’s a question of monitoring of what?

Not monitoring of any individual permittee’s discharge.

In fact, it’s not designed for that.

We even presented evidence in the district court to that effect.

John G. Roberts, Jr.:

Well, the Government says that that question — you’re saying, I understand, there are other discharges — well, you’re by far the dominant discharger, but I understand there are others, and they may contribute as well to what the monitoring station says.

But the Government’s position is that, well, that’s how you wrote the permit without any allocation; and, that whatever allocation issues you have may be between you and the other dischargers, but that doesn’t affect the showing of liability.

Timothy T. Coates:

Well, except for the fact that the permit terms themselves say that each permittee is only responsible for its own discharge.

If you read the permit in the general fashion that the Respondents wish, then you’re not responsible only for your own discharge.

It’s essentially you’re in immediately and responsible for all of them until you prove otherwise.

And that’s just not how the permit reads.

John G. Roberts, Jr.:

Where is that?

I know we’ve got the permit.

Where does it read that way?

Timothy T. Coates:

Let’s see.

At the Joint Appendix, page 93, G, 4.

Anthony M. Kennedy:

What page again?

Timothy T. Coates:

Volume I of the Joint Appendix, page 93, and it’s the fourth paragraph.

And it’s at the very bottom of the fourth paragraph:

“Each permittee is responsible only for discharge for which it is the operator. “

Anthony M. Kennedy:

Suppose that the district has 85 percent of the water by volume that’s put into this river, and then you have this high pollution index.

Does that make it an easier case for the challengers, or is that just irrelevant?

Timothy T. Coates:

It’s just irrelevant unless you show that in that bulk of water there is a higher concentration of pollutants.

You could have a major discharger that undertakes more vigorous pollution controls than a smaller discharge.

It doesn’t necessarily show that you’re adding more pollutants necessarily or how those pollutants contribute to exceedances measured at the mass emissions monitoring stations.

Anthony M. Kennedy:

Well, I have one different question.

This is hypothetical.

It’s not in the case.

It’s just for me to understand.

Suppose you have the river, and part of it is a concrete bank, and then there’s a more natural bedding and then another concrete bank.

And when the — in the dry season they fix the concrete bank, but they use bad concrete.

And a lot of pollutants are coming out of the concrete, but it is in the river.

Is that a discharge under this statute?

Timothy T. Coates:

I don’t believe so.

Although, I could–

Anthony M. Kennedy:

Would there be any–

Timothy T. Coates:

–imagine circumstances where you create an outfall unintentionally by — by funneling.

I mean, I think you’re talking about just natural erosion of turbidity or whatever into the river.

I don’t believe that would necessarily be a point source.

It might be a non-point source pollution, but I don’t believe that would necessarily be a point source if it’s just inadvertently, you know, deteriorating in the river.

Anthony M. Kennedy:

–And that’s — that’s a separate part of the statute, nonpoint source pollutions.

Timothy T. Coates:

Well, it doesn’t sound like, you know, the — the way it’s defined under 1362 is a, you know, like, enclosed conveyance that — that discharges–

Anthony M. Kennedy:

Well, that’s not in this case.

Timothy T. Coates:

–Yes, that’s not in this case.

But I think–

Anthony M. Kennedy:

It was just a background, background question for you.

Timothy T. Coates:

–Yes, but I think that that — that probably wouldn’t be a discharge from a point source.

Antonin Scalia:

Mr. Coates, I am — I am still perplexed.

Timothy T. Coates:

Yes.

Antonin Scalia:

You say, and it seems to be correct, that each — each alleged polluter is only responsible for his own pollution, but you also say that these monitors are so situated that it is impossible to tell from the monitor who is responsible for the pollution.

Is that right?

Timothy T. Coates:

I think that — I think that is right, but you look for the–

Antonin Scalia:

So whose fault is that?

Timothy T. Coates:

–Well, the reason why, the reason why that that’s there, is to measure essentially the health of these rivers so that you can fine tune the MS4 permit, the systemwide permit, and so that you can gauge general water quality standards, and if necessary you can fine tune it to try and measure individual permittees.

And we note that there is a renewed permit.

It still has the monitoring stations in it, so under the Ninth Circuit’s decision we would still be discharging at those monitoring stations.

But it does provide for outfall monitoring at representative outfalls for individual permittees to do precisely that kind of correlation that we are talking about.

Antonin Scalia:

What — what it is — what is it that provides for that?

Timothy T. Coates:

There is a renewed permit.

The permits are renewed every 5 years.

This is — we are on the third permit now; this is the fourth; it’s gone 10 years.

The renewed permit continues the mass emission station, so, as I mentioned, we are still discharging in middle of the river as far as the Ninth Circuit is concerned.

But it does have provisions for additional monitoring near outfalls, along the banks of the rivers, for various permittees, so that in the future you could look at that testing and go: Boy, your outfall is producing X, Y and Z.

Sonia Sotomayor:

So this was a regulatory void?

Timothy T. Coates:

This was a–

Sonia Sotomayor:

A regulatory void that these — that there was no requirement previously that you monitor the outfalls?

Timothy T. Coates:

–Monitoring, correct, that there be specific outfall monitoring.

It’s a regulatory–

Sonia Sotomayor:

So how do you envision this permit was — by the way, just one side question and then to this one.

I thought the Ninth Circuit basically endorsed your view that under the permit you’re not — you’re only responsible for your own pollution.

Timothy T. Coates:

–That is correct.

Sonia Sotomayor:

So it has resolved this issue.

Timothy T. Coates:

It has resolved this issue.

Sonia Sotomayor:

All right.

So that’s why I ask why remand and why you’re saying why remand.

Timothy T. Coates:

Yes.

Sonia Sotomayor:

But putting that aside, how do you think the system was supposed to work before?

Timothy T. Coates:

Well–

Sonia Sotomayor:

Did you have any obligation, once you saw the excess pollutants, to start the reiteration process to try to figure out who was the cause of this?

Timothy T. Coates:

–Well, if they attribute a — a violation to a particular permittee — for example, the district court noted and the Ninth Circuit re-emphasized that you could at least, if you wanted to try and hook it to a single permittee, you could at least try and sample at an outfall for that permittee and then provide evidence that that contributed to exceedances.

They didn’t do that here, in the lower court.

Sonia Sotomayor:

You mean the Respondents could have done that here?

Timothy T. Coates:

The Respondents could have done that here.

They did not argue that they did that in the Ninth Circuit.

They abandoned that, that contention.

John G. Roberts, Jr.:

So what — what percentage of discharges come from you as opposed to the other members of the MS4–

Timothy T. Coates:

We have — we have the most infrastructure.

I don’t know the specific percentage, but bear in mind that there are 1,400 other entities upstairs–

John G. Roberts, Jr.:

–Give me an estimate?

Timothy T. Coates:

–You know, I can’t in terms of total water volume.

But we are — we are the largest player in that portion of the system.

I’m not going to downplay that.

What I’m saying is that there is no necessary correlation between that and ipso facto you’re the one causing the exceedances at the monitoring stations; that again there has to be something traceable to our discharge that contributes to those exceedances.

John G. Roberts, Jr.:

What — what goes into these discharges besides the rainwater runoff?

Timothy T. Coates:

Here it’s just stormwater.

John G. Roberts, Jr.:

Okay.

Timothy T. Coates:

I mean, a municipal separate storm sewer system–

John G. Roberts, Jr.:

So your — your hypothesis is in some of these minority dischargers, that for some reason their rainwater would have a different amount of pollutants than your rainwater?

Timothy T. Coates:

–Well, they could — they could very well have storm discharge different.

Yes, there are other discharges upstream from — there are industrial sites that discharge water into the L.A. River.

So — no, absolutely.

Absolutely.

And again, you know, a large jurisdiction, we may be more proactive in terms of doing pollution control as well.

There is just no automatic correlation to that.

And I think, as the district court said, you know, it’s not so much to ask to at least sample at one outfall to try and show that kind of correlation so you can show exceedances at the margin.

Elena Kagan:

I’m sorry–

Anthony M. Kennedy:

Was the Ninth Circuit’s error — was the Ninth Circuit’s error here a factual one, because it was based on the location of the stations, or was it a legal one because it misinterpreted our Miccosukee case?

Timothy T. Coates:

It — it’s a legal one.

I don’t believe it’s a factual mistake, for a couple of reasons.

One, the language that — that I cited, that’s in the cert appendix at 44, where it talks about the water again discharged to the river, suggests that that water was in the river and now it’s moving through our concrete channels and it’s again discharged into the river.

Its distinction that it draws is that there is something different because the MS4 is an intrastate manmade construction as opposed to a naturally recurring river, which talks about the distinction being made in that regard.

And finally, the record is just abundantly clear on where these monitoring stations are.

The opinion itself at cert appendix page 18, footnote 4 cites our website as to location of the monitoring — for the location of the monitoring stations, and that website clearly says they are within the Los Angeles and San Gabriel Rivers.

And in fact appellant’s brief, the Respondents’ brief in the lower court, specifically said the same thing.

Sonia Sotomayor:

You just said there were polluters upstream.

Are those industrial polluters upstream–

Timothy T. Coates:

There are — there are–

Sonia Sotomayor:

–or industrial facilities, are they within your MS4?

Timothy T. Coates:

–They are not.

They have separate NPDES permits.

Sonia Sotomayor:

But what you’re saying is that there are outfalls from different people into the same river.

Timothy T. Coates:

Correct.

Correct.

Sonia Sotomayor:

All right.

So we don’t know whether the outfall is from your MS4 or from some other source?

Timothy T. Coates:

Correct, because they are all upstream of the monitoring station.

Stephen G. Breyer:

Okay.

So you say they have two remedies.

The NRDC if they think you are polluting could have done — could do two things.

One, they could go and get some expert to try to get a sample or to make an estimate based on what he knows about the industrial sites that it’s actually your storm drains that are polluting.

That’s one thing they could do; you say they didn’t do it.

Okay; the second thing they could do is they go to the permitting authority and they could say: Will you please ask the L.A. County to monitor the actual storm drains when they come in, a sample thereof.

And you’re saying they could have done that, but they don’t have to now, because now that is a requirement and we are doing it.

Timothy T. Coates:

That’s correct.

Stephen G. Breyer:

Okay.

Timothy T. Coates:

That’s correct.

That’s correct.

That’s correct.

John G. Roberts, Jr.:

Okay.

Where is that requirement?

Timothy T. Coates:

Excuse me?

John G. Roberts, Jr.:

Where is that requirement that you’re now doing?

Timothy T. Coates:

We, in our reply brief we cite the fact that a — a — the permit has just been renewed.

We are waiting for the final version to go on line and to see it.

I think what we cite to the Court is the last one that was before the regional board.

It lines — it lines out.

John G. Roberts, Jr.:

So you are not doing it now?

Timothy T. Coates:

We are not doing it now.

I mean, the new permit is technically effective.

It could be stayed if someone challenges it.

I think it’s open until challenge until December 11th.

But under the renewed permit there is outfall monitoring, specific outfall monitoring.

Now, the mass emission station is still there, and under the Ninth Circuit’s opinion we are still discharging there and responsible for the exceedances.

So — but that’s the type of monitoring that plaintiffs want and that’s in the new permit.

If they want it in the last permit they would have disputed it; they could have contested the last permit.

Timothy T. Coates:

But they didn’t do so.

This is a fine tuning program.

I mean, municipal stormwater is a complex issue.

Congress didn’t treat it the same way it did industrial stormwater.

Anthony M. Kennedy:

Is it your position that the rivers — the two rivers in question are outside the MS4?

I thought there was a suggestion in the Government’s brief that you could have both the river and the MS4 that could cover the same area.

Timothy T. Coates:

We have — in the lower courts the district personnel refer to the channelized portion as part of our MS4 because it’s all flood control to us.

However, we have never said it’s all the same for purposes of a discharge.

We’ve been very careful about that, that for a discharge from a point source, an outfall, not the monitoring stations — in fact, in the district court plaintiff somewhat argued that theory, the monitoring stations, when you’re MS4 they’re exceedances; ergo, exceedances in your MS4.

And we pointed out under Miccosukee there is no discharge of water.

There’s no discharge because it’s merely transferring water as water moves past the monitoring stations.

Ruth Bader Ginsburg:

What was the purpose of having the monitoring station if nothing can be done?

And are — the monitoring shows yes, there is a lot of pollutants in there, and we know that at least some of them have to be ascribed to the district.

But you say unless you show the outflow, that it comes from there, no liability.

Why shouldn’t it be that, given there is going to be a contribution that the district is making, that the district should have the burden of showing, no, there are all these other ones out there, so our percentage is X, not the whole thing?

Timothy T. Coates:

Well, again, the Water Act makes you responsible for a discharge in violation of permit terms, so you have to have a discharge by the permittee.

The permit terms itself are not written in that fashion.

Again, it says we are only responsible for our own discharge.

Could you write a permit that way?

Perhaps.

But this permit was not written that way.

And, in fact, the Ninth Circuit agreed with us on that.

The permit language is not tricky on that.

You could have permittee monitoring.

You could.

And that’s what the renewed permit does.

But that is not this permit.

The regional board — as I said, it’s part of a process.

There have been three permits over the last — since 1990.

And we have a fourth permit, and it has some new provisions to fine tune it for precisely this reason.

Timothy T. Coates:

I note that — the biggest dispute we seem to have on this monitoring issue, and it’s one that I think the discussion we are having bears out, is that it is not a straightforward issue; that when you look at the statute itself, the statute 1342(p)(3) distinguishes between industrial stormwater dischargers and municipal stormwater discharges.

Now, I think it is worth looking at that provision, because if you look at (A), and that talks about industrial dischargers, it says they have to meet every requirement of this provision.

And if you go to 1342(a), it includes everything, including the monitoring requirements of 33 U.S.C. 1318.

But if you look at 1342(p)(3), subdivision (B), which talks about municipal stormwater, you do not see that language.

You do not see that “ must comply ” with every other provision of this section.

It doesn’t say that.

It only has essentially three requirements, which is, these permits can be granted on a system-wide or jurisdiction-wide basis, you have to only allow stormwater, and that the — must provide to try and manage pollutants to the maximum extent practicable.

And that’s the sum total of it.

So I don’t think you can assume that these are identical monitoring requirements.

It’s, at the very least, a complex question.

I think it’s one that would have behooved the Court to be able to obtain more amicus assistance on.

And part of it is the way that this was raised to this Court, that this was a proper issue for a cross-petition.

And the only justification I’ve seen for this is I saw a letter come to the Court advising it of two cases, I think, LaTule v. Scofield — I don’t know if it’s LaTule or LaTool — and Oriason v. United States.

And neither of one of those suggest that this is an appropriate issue for the Court.

Antonin Scalia:

Is — is your description of the statute meant to conclude, or does it — does it conclude, that these outsource monitoring stations which exist under the new permit are not really required?

Timothy T. Coates:

Well, not necessarily statutorily required, but they are part of the permit, yes.

They’re in there.

They’re in there.

We’re not–

Antonin Scalia:

Oh, I understood that.

Yes.

Timothy T. Coates:

–We’ve agreed–

Antonin Scalia:

Can you put in the permit stuff that the statute does not require?

Timothy T. Coates:

–Well, you can — I think you can agree to terms in a permit, yes.

Antonin Scalia:

Okay.

Timothy T. Coates:

Yeah.

And with that, I would reserve the balance of my time for rebuttal.

John G. Roberts, Jr.:

Thank you, counsel.

Mr. Shah.

Pratik A. Shah:

Mr. Chief Justice, and may it please the Court:

Pratik A. Shah:

The answer to the question presented in this case is both straightforward and undisputed.

Under this Court’s decision in Miccosukee, no addition, and thus, no discharge of pollutant occurs, when water flows from a channelized portion of a river to a downstream portion of that same river.

Because the monitoring stations at issue are actually located within the rivers themselves, the court of appeals erred in concluding that a discharge of pollutants occurred when, quote,

“the still-polluted stormwater flowed out of the concrete channels where the monitoring stations are located, through an outfall and into the navigable waterways. “

And because the court of appeals rested its liability determination on that erroneous premise, the judgment should be vacated and the case remanded to the court of appeals.

Ruth Bader Ginsburg:

Mr. Shah, what about the problem that one of the amici brought up concerning dredged material?

Said that if we just say Miccosukee applies, then when there’s a dredging operation and the material is redeposited back into the same water, then that would also — there would be no responsibility based on that.

Pratik A. Shah:

Right.

Your Honor, I think — I think the one amicus that does raise that issue raises it limited to — the biggest counterexample they raise is the one that you raise about Section 404 permits for dredged and fill material.

Those permits are just very different in kind.

Section 404 applies to dredged and fill material, which almost by definition is going to be coming from the source itself.

And so we think that the Miccosukee line of decision just doesn’t apply to that permitting regime, which — which is a very different sort of permitting regime than we have at issue here.

And in any event, I think it’s far beyond the question presented in this case, the Miccosukee rule.

Sonia Sotomayor:

Counsel, tell me why remand?

I thought — and correct me at whatever step I’m wrong, okay — that the district court rejected Respondents’ argument that the mere monitoring excesses created liability.

What it said is you have to follow the terms of the permit and make the permittee responsible only for their excess discharges, and you haven’t shown us any evidence that does that.

The Ninth Circuit agreed that the permittee is only liable for its own discharges.

It held the permittee liable because it believed that the discharges were within their source, within their outflow.

So what are we remanding for?

The legal question of whether the — the — the monitoring stations automatically create liability has been answered in the negative by both courts.

Pratik A. Shah:

Justice Sotomayor, I agree with your reading of both opinions below.

I think what we’re asking for is the Court to do what it normally does when it vacates an erroneous part of a judgment and sends it back, that is, leave it open to the court of appeals to address any issues consistent with this Court’s opinion.

We think it’s conceivable that the Ninth Circuit might approach the permit construction issue differently once it’s corrected of the misimpressions–

Sonia Sotomayor:

How would it–

Pratik A. Shah:

–that it had before it.

Sonia Sotomayor:

–what could it do differently?

Pratik A. Shah:

I think, in particular, the Ninth Circuit construed this permit on the understanding that there was a discharge of polluted water after it flowed past the monitoring station and said that the district could be liable based simply on the exceedance measured by the mass emission station alone.

Sonia Sotomayor:

How does that change the answer to the legal question that the permittee — both courts have said the permittee is only liable for their own discharges.

And unless this proves that they discharged, they themselves discharged, which it can’t because it’s in the river and not within the source–

Pratik A. Shah:

Well, it–

Sonia Sotomayor:

–how can that alone establish liability?

Pratik A. Shah:

–Well, again, I think the Ninth Circuit predicated its permit interpretation on the understanding that there would be at least some way to hold a permittee — in this case, the district — liable based on the mass emission exceedance alone, and that’s because it misapprehended that there would be a discharge of flow of the polluted water.

It could be, and it may not be.

We don’t know until it gets back to the Ninth Circuit.

It may be that the Ninth Circuit would reject the view that you could have a permit that sets up a permitting regime that does not allow a plaintiff to sue any particular permittee unless it has evidence beyond that provided by the monitoring regime.

Antonin Scalia:

So — so — so what follows from that; that the district is liable because it’s a lousy permit?

Pratik A. Shah:

Well, Your Honor, if–

Antonin Scalia:

I do not see how this court — how the — how the court of appeals is going to be able to do anything different other than say there’s no liability here, unless, of course, it adopts another fanciful interpretation of the statute, which is something I worry about.

Pratik A. Shah:

–Well, Your Honor, we think that this permit — again, the terms of this permit are both complex and ambiguous.

We do not think that permits should be written this way.

We think permits that provide for water quality — for MS4s to adhere to water quality standards based on ambient monitoring should be coupled with either individual–

Antonin Scalia:

I — I agree with that, but how can this permit possibly be interpreted in such a way as to hold a district liable?

Pratik A. Shah:

–Well, I think the most persuasive — and, again, we don’t take a firm position on this, but I think the most persuasive argument on the other side would be that when permit writers issue a permit, they — they assume that the permitting regime provided in the permit would provide a basis to seek enforcement of that permit.

If that were true–

Antonin Scalia:

They would assume that; but, if it doesn’t, it doesn’t.

Pratik A. Shah:

–Well–

Antonin Scalia:

So what do you do if it doesn’t?

Pratik A. Shah:

–Well, one could imagine a regime where the permittees, that is, the municipalities who apply for a joint permit, would agree to a shared presumption of liability.

For example, there are–

Antonin Scalia:

They have — they have not agreed.

Pratik A. Shah:

–Well, again, we don’t–

Antonin Scalia:

So you’re going to impose a shared thing?

I see no way for the court of appeals to do this in — in a fashion that will not bring the case right back here, and you’ll be asking us to send it back to the same panel.

Pratik A. Shah:

–Well, Your Honor, I don’t think it’s a cert-worthy issue, how to interpret the terms of this specific — this is a fairly–

Stephen G. Breyer:

But, anyway, you say that the court held the same thing in two other cases involving two other rivers, and they didn’t cross-appeal from that, and so that issue isn’t really in front of us.

Pratik A. Shah:

–Well, Your Honor–

Stephen G. Breyer:

And if they did hold what you said, then they’d have to reopen the other two cases.

Pratik A. Shah:

–Right.

You Honor, I think in terms of the cross-petition issue, that is a closed question.

I don’t think the Court needs to get near it, because I think there are several other good reasons why this Court should not decide the permit construction issue itself.

Stephen G. Breyer:

Okay.

But if we decide that they needed file a cross-petition and they didn’t, then what’s the basis for our remanding rather than reversing?

Pratik A. Shah:

Well, Your Honor–

Stephen G. Breyer:

It’s that issue that what we have to decide.

Pratik A. Shah:

–Your Honor, it’s established that this Court — even if a cross-petition were required, it’s established that this Court has the authority to remand for disposition of any further issues once a case comes before this Court.

So the cross-petition–

Sonia Sotomayor:

Why should we in light of the clarity of the permit?

That’s the question Justice Scalia is asking.

Pratik A. Shah:

–Sure.

I think the Court should just follow its ordinary practice.

We’re not asking for anything different than its ordinary practice of vacating the judgment and remanding for further proceedings consistent with its opinion.

Antonin Scalia:

But that is not our ordinary practice when nothing can happen on remand except — except to give judgment for the Petitioner here.

Pratik A. Shah:

Well, I think it would be unusual for the Court to reverse and then instruct that judgment be entered in favor of Petitioner.

Of course, the Court is free to do that and it may decide to do that.

We just think that there is a possibility that the Ninth Circuit would — would take a different approach.

Stephen G. Breyer:

Sometimes the Court says in the bottom line in that italicized thing, which I’ve never fully understood when and when we don’t do it, but it just says “ Reversed ”.

Pratik A. Shah:

Right.

Stephen G. Breyer:

And then sometimes it says “ it is so ordered ”.

And exactly when you write the word “ Reversed ” — but I usually just ask the Clerk, all right.

But the question — the question is when do we do the one or the other, and I think here what they’re saying is: Just write the word “ Reversed ”, we’ll deal with the rest of it.

All right.

So that’s–

Pratik A. Shah:

Right.

And again, the Court is well within its — its discretion to do that.

We think–

John G. Roberts, Jr.:

Doesn’t that always say that in the judgment of the Court?

Pratik A. Shah:

–Doesn’t it always say what, Your Honor?

John G. Roberts, Jr.:

Does it say “ It is so ordered ” in the judgment that we release?

Pratik A. Shah:

Yes, yes.

And I think the typical — I think the typical phrasing would be vacate and — and remand for further proceedings.

Ruth Bader Ginsburg:

Mr. Shah, am I right about that this other theory, if it were open to the Ninth Circuit, would apply equally to the other rivers that Justice Breyer mentioned, and those were out of the case because when it got to the Ninth Circuit we were talking about only the Los Angeles and the San Gabriel?

Pratik A. Shah:

That’s right, Your Honor.

Ruth Bader Ginsburg:

That — that other theory would apply to all four.

Pratik A. Shah:

I — I think that is correct and the Ninth Circuit may decide that therefore it’s not going to revisit its permit interpretation.

I think it might be within the Ninth Circuit’s discretion since it still has the case on remand if it were to revisit its permit construction.

John G. Roberts, Jr.:

The reason it would not look at Malibu and — what’s the other one that we’re already–

Pratik A. Shah:

The other watershed.

John G. Roberts, Jr.:

–Yes, would be because it wouldn’t comply with the cross-petition rule.

Pratik A. Shah:

No.

John G. Roberts, Jr.:

We’re are not going to send it back to them to–

Pratik A. Shah:

I’m sorry.

I thought it would be that the rationale that they used for those two rivers, it would be in tension with it, and if they agree that the rationale which led them to deny — to deny liability on those two rivers, that may lead them to adhere to its current permit interpretation.

John G. Roberts, Jr.:

–Do — do you have a position on the cross-petition issue?

Pratik A. Shah:

No, Your Honor, we do not.

John G. Roberts, Jr.:

Thank you, counsel.

Pratik A. Shah:

Thank you.

John G. Roberts, Jr.:

Mr. Colangelo.

Aaron Colangelo:

Mr. Chief Justice, and may it please the Court:

We do not defend the judgment on the Ninth Circuit’s stated rationale, but on alternative grounds that are properly before this Court.

The compliance monitoring included in the permit determines Petitioner’s liability for permit violations as a matter of law, as the Clean Water Act, EPA regulations, and the permit’s own terms all require.

John G. Roberts, Jr.:

Well, where is the permit’s own terms?

Your friend cited JA 93, which says each permittee is responsible only for a discharge for which it is the operator.

So where does the permit clearly show the opposite?

Aaron Colangelo:

Your Honor, let me point you to three provisions in the permit that, taken together, compel this result.

The first is page 195 of the joint appendix, the paragraph numbered D(1).

And this refers to the individual permittees and it says:

“Each permittee must comply with all of the terms, requirements, and conditions of this order. “

“Any violation of this order constitutes a violation of the Clean Water Act, its regulations, and the California Water Code and is grounds for enforcement action. “

And that’s the first of the three provisions, and it is undisputed here that there are permit violations.

The monitoring included in the permit that Petitioner and its co-permittees chose has demonstrated since 2003 undisputed permit violations.

Aaron Colangelo:

The second provision is page 98–

Antonin Scalia:

Wait.

But — but before you go further, it says each permittee must comply.

It doesn’t say that each permittee shall be responsible or shall be liable.

And it’s the other provision that says that each permittee is responsible only for a discharge for which it is the operator.

Aaron Colangelo:

–Correct.

Antonin Scalia:

So you got more–

Aaron Colangelo:

Yes, You Honor.

Antonin Scalia:

–more besides 195.

Aaron Colangelo:

Well, and what 195 adds is it says any violation is grounds for enforcement action.

Now, JA 98 talks about exactly this circumstance when violations are detected at the monitoring stations.

And about halfway down JA 98, it says if exceedances of water quality objectives or water quality standards persist — and that’s only measured in one place; that’s at the compliance monitoring in the rivers — notwithstanding implementation of control measures and other requirements of this permit, quote,

“the permittee individually, the permittee shall assure compliance with discharge prohibitions and receiving water limitations by complying with the following procedure. “

It then sets out four steps that each permittee must comply with to bring the MS4 within the permit limits.

Now, that is–

Antonin Scalia:

Of course, the very first step is A,

“Upon a determination by either the permittee or the regional board that discharges are causing or contributing to an exceedance of an applicable water quality standard, the permittee shall promptly notify. “

et cetera.

They cannot make such a determination because of the nature of the monitoring here.

Aaron Colangelo:

–That’s — that’s incorrect, Your Honor.

The permit compels this result because there is only one place in the permit that that monitoring is required and that is the in-stream mass emission stations that the permittees chose, and the permit says explicitly the monitoring results at those locations are used to assess compliance and determine whether the MS4 is contributing to violations.

Stephen G. Breyer:

But as I read it and he explained it, I thought that, look, what they’re thinking is this.

Stormwater is really a big problem and it’s really complicated how you work it out, and we want the agencies to work it out.

So the purpose of this monitoring thing is we first determine that there is an exceedance.

Now, once we determine that there is an exceedance, which is the point of this pertinent particular requirement, then we’re going to go on to decide who.

And what we’re going to do is leave you with two possible choices.

One is you can try to figure out who, which means you’ve got to get an expert and monitor it; or let us now have a new permit which will — will, you know, which will — which will put some responsibility on the individuals, because we’ll monitor higher up the river.

Now, that’s a rational way for an agency to proceed and it leaves you with pretty good remedies.

And so why — why are we running all around trying to work this thing out.

Why don’t you just sort of try to deal with it as they described it and say okay, we’re going to either prove you did it before or at least we can prove it now?

Aaron Colangelo:

There are two answers to that, Your Honor.

The first is this is all sorted out during the permitting process.

This permit was adopted by the State agency and upheld by State courts upon the Petitioner’s challenge after 5 years of litigation.

The permit was based on an 80,000 page administrative record and the testimony of 29 witnesses.

And the point of this process is that permit terms are fixed once the permit is finalized and approved by the courts.

Now, the reason we didn’t challenge the permit at the time is that we were defending the permit alongside the State agency as an intervenor against Petitioner’s challenge.

Petitioner in State court for years made exactly the opposite argument that it makes here.

It said that it was entitled to a safe harbor provision in the permit to excuse it from liability, because it would be held responsible based on this in-stream monitoring.

Now, there may be as a technical or scientific matter better monitoring programs to determine who’s putting in what and where exactly it is coming from, but that cannot be reopened upon an enforcement proceeding.

Ruth Bader Ginsburg:

But how do — the district is a big contributor, but there are other contributors.

So, on your theory, how do we determine what is the share that the district would be liable for?

Aaron Colangelo:

Your Honor, the permit includes a blueprint that sorts that out, and it parallels the traditional notion of several liability.

Where there are multiple contributors to a single harm, each is responsible for its share–

Anthony M. Kennedy:

But you still have to show that there is a contributor.

And I’ve been through these sections, and it seems to me that a reasonable interpretation of this section is that there is a violation if a particular permittee violates.

And what I’m taking away from your argument is that once there is a violation, all the permittees are liable.

That just can’t be.

Aaron Colangelo:

–It can be, Your Honor, and that’s the — that’s the solution that the permit works out and that the permittees negotiated for in advance.

Antonin Scalia:

What’s the third section, Mr. Colangelo?

I’m waiting breathlessly for your third section.

You said there were three.

Aaron Colangelo:

The third, Your Honor–

Antonin Scalia:

I’ve got 195.

I’ve got 98.

Where is the third one?

Aaron Colangelo:

–The third, Your Honor, is JA 109.

Antonin Scalia:

109.

Aaron Colangelo:

And this parallels a provision in EPA’s regulations.

At the very bottom of JA 109, subsection D, it says,

“The permittee shall carry out all inspection, surveillance, and monitoring procedures necessary to determine compliance and noncompliance with permit conditions. “

Aaron Colangelo:

So the problem with Petitioner’s theory is that they are violating this provision of the permit, which is taken virtually verbatim from EPA regulations, which says that the discharger has the responsibility to measure and report its own violations.

And stepping back to talk about the Clean Water Act program generally and the discharge permit program generally, no one is entitled to discharge without a permit; a permit fixes terms that must be complied with; and, at the heart of the permitting program is self-monitoring and self-reporting of violations.

John G. Roberts, Jr.:

Looking at 109, it strikes me as a little bit circular to say they have the responsibility to carry out inspection and surveillance and monitoring to ensure compliance with the permit; and, their point is, well, we’re not — we’re not not in compliance with the permit because you haven’t — there hasn’t been an allocation of the discharges to them.

Aaron Colangelo:

Well, and the problem with that, Your Honor, is that it leads to no liability ever for the discharger, even though it concedes–

John G. Roberts, Jr.:

Well, I think that might be — I think that might be right, but that gets back to the question of whether the permit is — is poorly drafted.

Aaron Colangelo:

–Right.

John G. Roberts, Jr.:

And I guess the idea is they’re changing the permit so to cure that problem.

Aaron Colangelo:

The permit has changed.

It is not yet effective, Your Honor, but there is a new permit that will be in effect shortly.

But on the question of whether–

Antonin Scalia:

Well, why — why do you need that if — if the present permit covers it as clearly as you say?

I mean self — self-monitoring.

Aaron Colangelo:

–That is absolutely–

Antonin Scalia:

My goodness, you’re going to go through all of this how many — how long did it take you to challenge this, and blah, blah, blah, blah.

Why go through all that if, indeed, the present permit, as you say, is perfectly adequate?

Aaron Colangelo:

–The present permit is adequate.

The state agency renewed the permit.

That’s a matter of course.

It changed the monitoring program.

The point is that whatever monitoring the state agency sets and that the state courts uphold is the monitoring that determines compliance.

Ruth Bader Ginsburg:

Well, wouldn’t you still — I’m not clear if you gave me an answer to how the district share would be determined.

It is not the only polluter.

Are you saying each permittee is responsible for the whole?

Aaron Colangelo:

No, Your Honor.

That’s joint and several liability.

And here, JA 93, which Petitioner cites, says that each permittee is responsible only for its discharges.

That’s just–

Ruth Bader Ginsburg:

So how do we find out what is its part — what is its share?

Aaron Colangelo:

–The permit sets that out.

The permit says, once a violation is detected, each permittee has to go back upstream, conduct enhanced monitoring to identify the particular sources of pollution within its jurisdiction, control those sources, but only those within its jurisdiction, and continue that process until the problem is resolved.

Anthony M. Kennedy:

Is that the 109 language you cite?

Aaron Colangelo:

No, Your Honor.

That’s at both 98, which I cited second, and page 213.

Stephen G. Breyer:

Okay.

So the upshot would be, however, as I understand it, and correct me if I’m wrong, that since they’re doing that now anyway under the new permit — and you can question my hypothetical assumption there — but if they are doing it under the new permit, then the only result of your winning this would be to transfer the running of the district from the agency to the court.

And I suspect the Ninth Circuit knows less about it than you participating in a — some kind of negotiation with the agency.

Aaron Colangelo:

No, not at all, Your Honor.

The Petitioner retains the authority and, indeed, the responsibility to identify the particular sources within its jurisdiction that are causing the problem and abating only those.

So it is limited, in response to Justice Ginsburg’s earlier question, only to its own share.

There is no question that there are other contributors, but the permit doesn’t impose a violation only upon the entity who is the sole cause.

There are — there are many polluters that discharge into these rivers.

The permit specifically says it is unlawful to cause or contribute to a violation of water quality standards.

So prohibiting a contribution assumes that there will be other contributors and that the Petitioner will not be the sole cause.

John G. Roberts, Jr.:

Well, this is all fine and good.

Your friend, though, says you should have cross-petitioned because the relief you seek expands the judgment below, and there are all these cases saying you can’t do that.

Aaron Colangelo:

Your Honor, the relief we seek would not expand the judgment below because the two rivers on which we lost are out of the case.

John G. Roberts, Jr.:

Well, I understand that, but — it seems reasonable, but they do cite a lot of cases that say you can’t do that.

You can’t just sort of say, oh, I give up on the others, because the judgment, I guess, is one whole, and you would be changing the judgment.

Aaron Colangelo:

Accepting this argument, Your Honor, would not change the judgment.

The cases that Petitioner cites are all examples — except for one, which I’ll get to in a second — where the Respondent was seeking to change the judgment, either in its favor or to get lesser relief, or where the result would necessarily have changed the judgment.

Here, accepting this argument would not change the judgment.

Ruth Bader Ginsburg:

Why was it giving up — you’re giving up on the two rivers even though your theory would work the same way with respect to them?

Aaron Colangelo:

That’s correct, Your Honor.

And that’s consistent with the cross-petition rule.

A respondent who is satisfied with the result below and does not seek to change the judgment does not need to cross-petition.

A cross-petition is only necessary–

Ruth Bader Ginsburg:

But do you think that the trial court was wrong, the district court was wrong, and the Ninth Circuit, both times, when they said, well, you didn’t prove — there was no proof that the district was responsible for a given part.

So, on your theory, both the district court and the Ninth Circuit were wrong on that?

Aaron Colangelo:

–On that legal question, Your Honor, yes.

But this Court can affirm on any basis preserved below, and this was also preserved in our brief in opposition at the jurisdictional stage, as long as it would not change the judgment.

Aaron Colangelo:

And here’s why it would not.

Let me distinguish the Northwest Airlines v. County of Kent case, which Petitioner cites.

That case presents, in fact, the opposite situation of what we have here.

In that case, Respondents’ argument, had it been accepted, would have required the district court to grant further relief in continuing proceedings on a claim that no longer existed because the Respondents’ argument was that there was no private right of action at all.

Our case is the opposite because, if the Court accepts our position, we simply don’t get any further relief with respect to claims that are waived to which we would have been entitled.

And the two cases that we’ve cited by letter last week both represent exactly that situation.

Antonin Scalia:

Mr. Colangelo, did you raise this argument in your brief in opposition?

Aaron Colangelo:

Yes, Your Honor, we did.

Antonin Scalia:

Where is it in that?

I was looking for it.

Aaron Colangelo:

It’s in two places in the brief in opposition; page 4 to 5, where we set out this compliance monitoring framework, and page 18 to 19.

Antonin Scalia:

That may be, but you don’t support — and page what?

Aaron Colangelo:

Page 18 to 19.

And then, again, in our supplemental brief, Your Honor.

Antonin Scalia:

But you don’t–

Aaron Colangelo:

At the cert stage.

Antonin Scalia:

–you don’t say that that’s the basis for supporting the decision below.

I certainly didn’t interpret it.

Aaron Colangelo:

We do — let me just quote what may be the most explicit thing, Your Honor, which is at the very bottom of page 4 in our supplemental brief at the cert stage:

“The Court of Appeals’ ruling was both correct and equitable. “

“Every Clean Water Act permit must include monitoring provisions ensuring that permit conditions are satisfied. “

And we lay out the compliance monitoring.

That’s 4 to 5 of our supplemental brief in opposition to cert.–

Antonin Scalia:

I don’t have your supplemental brief in front of me.

John G. Roberts, Jr.:

Where on 4 to 5?

Aaron Colangelo:

–At the very bottom of page 4, the last two lines, and the top of page 5.

Final — now, most of our supplemental brief and our brief in opposition were addressing why we did not think Petitioner’s question merited this Court’s review.

This is the argument that we made in defense of the judgment below:

“The Court of Appeals ruling was both correct and equitable. “

“Every permit must include sufficient monitoring to determine compliance. “

Antonin Scalia:

Well, but that’s just to say you can rely on — on the extant monitors.

Aaron Colangelo:

Absolutely, Your Honor.

And Petitioner’s saying we’re not–

Antonin Scalia:

So you say, you know, they were correct.

You have to find some basis for liability, and they use the monitors, and that’s it.

It didn’t — it didn’t say in detail that these people had to go and set up their own monitoring under the permit.

Aaron Colangelo:

–Your Honor, that was the — that was our argument in the Ninth Circuit and at the cert stage, and that — we do lay out exactly how the permit works.

The point is that the permit imposes liability on the multiple dischargers–

Antonin Scalia:

You — you told this to the Ninth Circuit, and the Ninth Circuit said no?

Aaron Colangelo:

–That’s correct, Your Honor.

That’s correct.

But we can — we can defend the judgment on a basis, even one that the Ninth Circuit rejected.

To go back–

Elena Kagan:

Counsel, suppose we did what the — the Solicitor General says to do and vacated this.

Can you think of any reason why the Ninth Circuit would change its mind?

I mean, is there any connection between these two issues that you can point to such that our making clear to the Ninth Circuit that they made a mistake on one actually would affect their analysis on the other?

Aaron Colangelo:

–There is one reason, Your Honor, and that is that a permit is interpreted like a contract, and it is a cardinal rule of contract interpretation that a contract should be read where — where possible to be both lawful and enforceable.

So the Ninth Circuit may go back down and say: Okay, with this corrected understanding of the universe of law and facts that apply, we see that Petitioner’s reading of the permit would render it unenforceable because none of the permittees can be held liable and therefore unlawful because the Clean Water Act requires all permits to include within it self-monitoring and self-reporting to demonstrate a violation.

So the Ninth Circuit — now, it may just — it may just say: We say what we said before.

But it could reconsider on that basis and that would be a legitimate basis for it to do so.

To go back to the earlier question about where there is a discharge, there is no question that Petitioner discharges these pollutants to these rivers, so the only question for this enforcement proceeding is where to measure Petitioner’s discharges for purposes of liability.

Anthony M. Kennedy:

Why is there no — where do I look to find out that the district is making a discharge of polluted water other than under the Ninth Circuit’s theory that it’s in the river itself?

Aaron Colangelo:

Two places, Your Honor.

First is that it’s a premise for the permit itself.

So if you look at page JA 55, it says the Petitioner discharges stormwater into these rivers.

And then the very next paragraph shows that the Petitioner has done an assessment of the pollutants that are typically in its discharges, and it lists the ones that are now in violation here.

So the permit, it didn’t — it came out of this administrative process, and one of the elements–

Anthony M. Kennedy:

So is your theory that if the district is permitted to, on a scale of 1 to 10, to discharge up to 2, but that if the monitoring station in the river shows an 8, then it is automatically liable for the increase, even though other dischargees might have made this?

Aaron Colangelo:

–Yes, yes, because–

Anthony M. Kennedy:

I don’t get that from what you have read.

Anthony M. Kennedy:

I’ve looked at–

Aaron Colangelo:

–Your Honor, because–

Anthony M. Kennedy:

–the text you’ve read and it looks to me like it’s permittee by permittee.

Aaron Colangelo:

–It says that the MS4 is in violation, that’s correct.

But then it says each permittee must, when an exceedance is detected, take these steps.

So here what they have failed to do is take the necessary steps to apportion responsibility among the multiple contributors.

The second place, just to finish on the proof that they discharge–

Antonin Scalia:

Finish that.

So what’s the consequence of that?

Aaron Colangelo:

–I’m sorry?

Antonin Scalia:

Therefore each one of them is liable for all of it?

Aaron Colangelo:

No, no, Your Honor.

No.

Each one is liable for what they put in and bears the burden to demonstrate and limit what it puts in.

That’s explicit in the permit.

Antonin Scalia:

But they haven’t done so.

So what?

Aaron Colangelo:

So that’s a permit violation, and result is that this pollution continues year after year after year, when the point of the permit and the point of the Clean Water Act was to eliminate what everybody agrees is the biggest source of water pollution in Southern California.

Anthony M. Kennedy:

So if each permittee is allowed to put in a 2, but one permittee puts in an 8; then both permittees are liable?

Aaron Colangelo:

Correct, Your Honor.

Unless — because those facts are not known at the time the violation is detected.

Anthony M. Kennedy:

No, no, we now know the facts because it’s the hypothetical.

Aaron Colangelo:

Okay.

So if the permittee has done its own monitoring in addition to what the permit requires and can demonstrate that it did not put anything in, then it is not liable.

If not, then yes.

Two dischargers into the same river who agree in advance to be measured by a single monitoring station in the river are liable for what’s measured there, and then they sort it out.

And what — Congress set up a regime that would allow for system-wide and jurisdiction-wide permits precisely because this problem was so complicated.

John G. Roberts, Jr.:

Are the provisions — excuse me, the provisions we’ve been talking about, the three that you cited and the one that your — are they boilerplate?

Do they show up in every typical stormwater permit?

Aaron Colangelo:

Well, 109, the fact that the permittees must conduct all monitoring to demonstrate compliance, if “ boilerplate ” means that they are in all permits, then yes, because that’s a requirement of EPA regulations.

John G. Roberts, Jr.:

Yes.

What about the one that says each permittee is responsible only for a discharge for which it is the operator?

Aaron Colangelo:

That’s from a EPA regulation, too, yes.

That’s in the definition of “ co-permittee ” at 122.2; so yes, that’s also standard in system-wide permits.

To go back to the earlier question about where there is a discharge, the district court found, and this is undisputed, at petition appendix 117, the permit admits — the permittee, Petitioner, admits that it is discharging these pollutants, the ones measured in violation, to these rivers.

So what we have is no question, no dispute that they discharged these pollutants, a monitoring system included in the permit that the State court upheld against Petitioner’s challenge, showing that those limits have been exceeded.

Stephen G. Breyer:

So your basic argument is this permit requires you, L.A. County, to do monitoring to decide if you’re violating it.

You chose this system, then common sense suggests you’re doing it.

You struck out twice with that argument–

Aaron Colangelo:

Yes.

Stephen G. Breyer:

–in the other two rivers, so now you’re going to go back if we permit it, and you want to make the argument and tell the Ninth Circuit: Three times and you’re out; in this case, hold the opposite.

Aaron Colangelo:

Well — yes.

I’m not sure I would say we struck out, Your Honor; the–

Stephen G. Breyer:

I understand it.

[Laughter]

Aaron Colangelo:

–But correct, the lower court did not — neither lower court accepted this argument fully.

The Ninth Circuit did agree that all permits must include compliance monitoring, but it said you need a little more here.

And we think that was improper because you can’t add terms to the permit once it’s been settled.

And there was an earlier question, Justice Breyer, about could we sample from an individual outfall, could we show more?

The problem with that is that it would prove nothing.

The Petitioner has said: Just sample from one outfall, one of our outfalls.

We alleged 140 violations for a dozen different pollutants over a 5-year period.

So sampling from a single outfall as an evidentiary matter would be utterly meaningless.

Stephen G. Breyer:

Couldn’t you get some expert who–

Aaron Colangelo:

Well, we did, Your Honor, in district court as an alternative theory have an expert who said all of this came from them.

The district court did not address that and we didn’t appeal.

The appeal was limited just to this legal issue.

Antonin Scalia:

I don’t understand why you didn’t cross-appeal on — on this theory that, that the lower court rejected.

Aaron Colangelo:

Because, Your Honor, we were satisfied with the judgment; and that’s the rule.

A respondent who is satisfied not need to cross-appeal unless it is–

Antonin Scalia:

I didn’t say you need to.

I didn’t say you needed to.

But I — I would normally have done it just to be sure I had that arrow in my quiver and that it would not be argued, as it will be here, that this would be expanding the judgment below.

Aaron Colangelo:

–And the reason it would not be expanding the judgment below is that we are on the opposite side of what happened in Kent.

To rule in our favor on this argument would just leave untouched two claims on which we didn’t prevail.

We’d get no further relief on those.

It’s like two co-plaintiffs in district court who both lose identical claims.

One appeals and the other doesn’t.

The one who appeals wins a reversal.

That creates an inconsistency: Two similarly situated plaintiffs, one has a valid claim; one no longer does.

But that’s the consequence of our failing to cross-petition.

Sonia Sotomayor:

I just don’t remember now.

Do we have a circuit split on this issue of whether a permit in a situation like this would impose liability on all permittees?

Aaron Colangelo:

No.

No.

There is no — I don’t know of any other circuit court who has addressed — that has addressed this question.

And let me speak to the issue of additional monitoring, putting the burden on plaintiffs to conduct additional monitoring.

The problem is it creates a complicated factual dispute for district courts resolve — to resolve, when that was exactly what Congress wanted to eliminate.

When Congress adopted this permit program in the Clean Water Act and then amended it to bring municipal stormwater discharges under the program, Congress said we do not want district courts to be the forum for sorting out all of these complicated factual issues.

Stephen G. Breyer:

–I see.

What do you think of the Government’s point?

They are telling us just write what you usually write, and then you can go make all your arguments, see what they do.

Does that satisfy you?

Aaron Colangelo:

Your Honor, we would be most satisfied with an affirmance on the grounds we have presented.

If the Court vacates we would be satisfied with that, too, and then we would go back to the district–

Antonin Scalia:

What if this panel found — found for you on the ground that they used; they will surely find for you on this other ground, which–

[Laughter]

Aaron Colangelo:

–Yes.

We expect they would.

Antonin Scalia:

–which has at least an inkling of plausibility.

Aaron Colangelo:

Thank you, Your Honor.

[Laughter]

John G. Roberts, Jr.:

Thank you, counsel.

Mr. Coates, you have 4 minutes remaining.

Timothy T. Coates:

Thank you, Your Honor.

To the cross-appeal issue, the cases that we cite talk about the Court’s prudential limitation on deciding questions that are not preserved by cross-petition.

And I depart from my learned opponent Mr. Colangelo on that point as to what the Court’s cases say.

We cite the Northwest Airlines v. County of Kent case, and that is a case where in fact the respondent was not seeking to change the judgment below; they did not cross-petition.

They were just trying to keep what they had, and the Court said we are not going to reach that issue because if we buy the fact that there is no fact no private right of action, the effect of that is to essentially change the underlying judgment.

Stephen G. Breyer:

Let me ask a quick question.

Timothy T. Coates:

Sure.

Stephen G. Breyer:

Does it satisfy you if we just write in the judgment what you — we usually write and you can all argue what it means below?

What about that?

Does that satisfy or do you want us to write something special?

[Laughter]

Timothy T. Coates:

It — it’s — it’s acceptable because a reversal is always better than an affirmance.

But talking about what the Court decides and what’s left in the case, I think it is a case where the Court reviews what the Ninth Circuit actually decided, what is actually before it, and what is properly remaining in the case, because we don’t believe the cross-appeal issue is here.

And that leads, I think, to reversing the Ninth Circuit, because the district is entitled to summary judgment on these two river claims.

And I think that is all that’s left in the case.

And I call the Court’s attention to another case we cited on the cross-appeal issue.

It’s one of the NLRB cases, the Express Publication case.

And it makes it very clear there that the respondent was just trying to hang on so much of what was good about the order as he could keep and was not seeking to change anything.

And again, the Court said no.

It basically undermines the entire basis for the–

Antonin Scalia:

Did we use our usual language, and did it go back, and the — and the court of appeals considered–

Timothy T. Coates:

–I think in one of the cases, the Court–

Antonin Scalia:

–considered the issue we had refused to consider?

Timothy T. Coates:

–In one of the cases, the Court simply affirmed, and so it didn’t go anywhere.

Antonin Scalia:

Okay.

Timothy T. Coates:

But–

Antonin Scalia:

Don’t we have two — I don’t know that we do this all the time.

When we expect them to keep the case and do something different, don’t we usually vacate and remand rather than reverse?

Timothy T. Coates:

–Well, I do know that in the context of a lot of the Court’s opinions, the Court will specify that judgment be granted in terms of a party.

I know the qualified immunity cases, you find someone’s entitled to qualified immunity, and it comes up on a summary judgment, the reversal is — to the Ninth Circuit.

And I’ve seen both languages used, but it’s plain from the text of the opinion, the judgment is to be entered in favor of that party.

And, again, I think that’s appropriate here.

My opponent suggests and the Government suggests, again, that, let’s go back to the Ninth Circuit and let them consider this monitoring argument.

They considered it.

In fact, they even considered the use of contract terms that they urged them to consider again.

It’s already rejected that claim with respect to these two rivers that are in front of the Court.

It’s rejected it with respect to Malibu Creek and Santa Clara River, which is not in front of the Court.

They even accepted it with respect to an entire different party with County of Los Angeles–

Antonin Scalia:

But they might change their mind now.

They might change their mind.

Timothy T. Coates:

–It would be a very odd judgment because you’d have two claims that are — continue to be dismissed that are not properly before any court.

Those close — those are closed.

And you have another party out of the case on the very ground that the Ninth Circuit rejected in the initial opinion.

A sort of remand for some consideration of an issue that’s already spoken on just doesn’t seem to make sense and invites the very sort of kind of jurisdictional confusion that I think leads the Court, for prudential reasons, not to consider these things unless there’s a cross-petition.

I think that’s why this is kind of a great example of why prudential reasons say you should not consider it.

John G. Roberts, Jr.:

Well, I understand, and you do cite a lot of cases for that, but I can’t figure out what sense it makes.

I mean, if you’re willing to give up Santa Clara and Malibu, you’re — you’re safe there, and that’s the only thing you’ve won.

Why does it — how does that make sense?

Timothy T. Coates:

Well, the Court does it for two reasons.

It does it as a prudential matter because it does look odd to affirm on — to make a decision in this Court on a ground that essentially repudiates the lower court decision.

It does it for prudential reasons.

And, in fact, the case they cite with Toray, which basically says the Court has the jurisdiction to do that — when someone abandons the piecemeal claim — is cited only once in this context after that, and that’s in the United States v. ITT Continental Baking case, 420 U.S. 223, footnote 2.

And the court gives it a “ but-see ” for the proposition that you have the jurisdiction to do it; but, then describes this exact situation and says, for prudential reasons, we don’t do it because it undermines our cert jurisdiction, particularly if resolution of that issue is highly fact-specific — the one they are trying to bring up — and it would really foreclose having to even decide this cert issue because you wouldn’t get to it.

John G. Roberts, Jr.:

Thank you, counsel.

The case is submitted.