Natural Resources Defense Council v. County of Los Angeles
2016 U.S. App. LEXIS 19541
| 9th Cir. | 2016Background
- In 2008 NRDC and Santa Monica Baykeeper sued Los Angeles County and the LA County Flood Control District alleging stormwater discharges violated the 2001 NPDES permit’s receiving-water limitations.
- On appeal the Ninth Circuit held the County violated the 2001 Permit and remanded for remedies; during the appeal the Regional Board issued a 2012 NPDES permit covering the same baseline receiving-water limits but with new compliance mechanisms.
- The 2012 Permit retains baseline limits but adds (1) TMDL-based interim/final compliance paths and (2) a "safe harbor" allowing deemed compliance if permittees timely develop and implement voluntary WMPs or EWMPs; failure to meet WMP/EWMP requirements revives the baseline limits.
- County declared intent and submitted numerous WMPs/EWMPs; some plans received approvals or conditional approvals, but the record lacks evidence the County has implemented construction/controls or secured financing necessary for long-term compliance.
- District court dismissed Plaintiffs’ claims for injunctive relief as moot, finding County currently in compliance under the 2012 Permit and there was no evidence County would not comply in future; Plaintiffs appealed interlocutorily.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jurisdiction over interlocutory appeal | Appeal from dismissal of injunctive claims is immediately appealable under 28 U.S.C. §1292(a)(1) | District court order was not an explicit denial of injunction; only had "practical effect," so Carson test should apply | Appeal is within §1292(a)(1): district court expressly dismissed injunctive claims, so interlocutory jurisdiction exists (Shee Atika controls) |
| Mootness of injunctive claims when permit replaced | New permit did not eliminate the baseline receiving-water limitations; injunctive relief can still provide effective relief | 2012 Permit changes (TMDLs and safe harbor) supersede 2001 Permit and show current compliance, mooting injunctive relief | Not moot: new permit retains baseline limits and safe harbor does not make recurrence "absolutely clear" impossible; new permit alone does not moot claims |
| Whether voluntary cessation and current compliance defeat mootness | County must meet heavy Gwaltney burden to show wrongful conduct could not reasonably recur | County’s participation in WMP/EWMPs and current deemed compliance show low likelihood of recurrence | County did not meet Gwaltney heavy burden; district court applied wrong (preponderance) standard and shifted burden to Plaintiffs |
| Effect of pending state challenge to safe-harbor and implementation uncertainties | Plaintiffs’ writ challenging safe-harbor and evidence of funding/implementation gaps create realistic risk violations will recur | Even if challenged, safe-harbor and WMPs will permit gradual compliance and avoid recurrence | Possibility of invalidation of safe-harbor and practical obstacles to implementing WMPs/EWMPs mean defendants failed to show it is "absolutely clear" violations won’t recur; injunctive claims not moot |
Key Cases Cited
- Nat. Res. Def. Council, Inc. v. Cnty. of Los Angeles, 725 F.3d 1194 (9th Cir. 2013) (prior merits ruling that County violated 2001 Permit and remand for remedies)
- Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49 (1987) (defendant bears heavy burden to show wrongful behavior could not reasonably be expected to recur)
- Shee Atika v. Sealaska Corp., 39 F.3d 247 (9th Cir. 1994) (direct denial of injunction is immediately appealable under §1292(a)(1))
- Carson v. American Brands, Inc., 450 U.S. 79 (1981) (orders having only practical effect of denying injunction require showing of irreparable consequence for interlocutory review)
- Holmes v. Fisher, 854 F.2d 229 (7th Cir. 1988) (dismissing equitable component is appealable under §1292(a)(1) even if damages claim remains)
- Rosemere Neighborhood Ass’n v. U.S. Envtl. Prot. Agency, 581 F.3d 1169 (9th Cir. 2009) (voluntary cessation does not moot claim absent demonstration wrongful conduct could not recur)
- Nat. Res. Def. Council, Inc. v. Sw. Marine, Inc., 236 F.3d 985 (9th Cir. 2000) (new permits during litigation do not automatically moot claims if challenged provisions persist)
- Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., 528 U.S. 167 (2000) (mere cessation of harmful conduct in litigation context insufficient to moot claims)