LA Waterkeeper Makes History in the Nation's Capital
Last week, I traveled to Washington D.C. to watch the U.S. Supreme Court hear oral arguments on Los Angeles County Flood Control District v. Natural Resources Defense Council (NRDC) and Santa Monica Baykeeper. Los Angeles Waterkeeper (formerly Santa Monica Baykeeper) brought this case, with our partner NRDC, to hold Los Angeles County responsible for stormwater pollution impacts to our local waterways, particularly in the Los Angeles and San Gabriel Rivers.
The purpose of this case is to address 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.
In 2008, Los Angeles Waterkeeper and NRDC filed two cases under our regional MS4 permit—one against LA County and one against the City of Malibu. Both cases involved violations of water quality standards at local beaches and the LA County case also involved claims of violations in four major watersheds in the county— including the LA River and San Gabriel River. We settled the Malibu case in April 2012.
In U.S. District Court, we won some of our claims in both cases on motions for summary judgment. However, we did not prevail on our claims against LA County pertaining to pollution in the major rivers. We appealed to the Ninth Circuit and prevailed last year on our claims related to the LA River and San Gabriel River. The Ninth Circuit held that LA County was liable for stormwater pollution measured at two receiving water monitoring stations in both rivers. LA County appealed (after losing on an en banc attempt) and, to our surprise, the U.S. Supreme Court granted cert this summer. The only claims at issue in front of the Supremes are the two river claims—that LA County is liable for discharges from its municipal storm drain system that cause or contribute to violations of water quality standards in the LA and San Gabriel rivers.
Last week's argument in the Supreme Court was fascinating, exciting and (at times) encouraging. Our job was to do the most with the 25 minutes we had and present our best arguments as to why LA County Flood Control District should be held responsible for its pollution.
We obviously had no idea what to expect. There were several procedural issues at play that could have dominated the oral argument. There was also the fact that we made the tactical decision to present an alternative affirmative argument for liability, other than the question presented before the court. However, within the first two minutes of the county counsel's argument, Chief Justice Roberts initiated questioning based on our alternative argument that the County should be held liable under a clear reading of the permit. It was a relief to hear interest in our approach to the case, and the majority of the one-hour argument proceeded to focus on the language of the permit, the actions of the County and our theories of liability.
The NRDC attorney representing us did a phenomenal job. In fact, the crowd outside on the steps of the Supreme Court applauded and cheered as he left the court. He was able to walk the justices through, step by step, each place in the permit and Clean Water Act demonstrating that the thousands of water quality violations documented in each of these rivers is partially attributed to LA County and that, under the law, the County must be held liable. It was an intense argument—our attorney engaged in several in depth back-and-forth dialogues with Chief Justice Roberts, Justice Scalia and Justice Breyer. Justices Kennedy, Ginsberg and Sotomayor were also very engaged. Full transcript here.
There is no doubt that plenty of skepticism could be heard through some of the questioning—but that was true while the county’s counsel was arguing as well. Of course, there is no way to predict the outcome, but at least I know that win or lose, we made our best arguments and we definitely had the Justices thinking and contemplating our positions.
And as Justice Scalia concluded at the end of the argument ... There is "at least an inkling of plausibility" that the lower court would again rule for us, but this time on our alternative grounds ... we just hope the court gives us that opportunity.
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By D. André Green II
One of nature's epic events is underway: Monarch butterflies' fall migration. Departing from all across the United States and Canada, the butterflies travel up to 2,500 miles to cluster at the same locations in Mexico or along the Pacific Coast where their great-grandparents spent the previous winter.
Millions of People Care About Monarchs<p>I will never forget the sights and sounds the first time I visited monarchs' overwintering sites in Mexico. Our guide pointed in the distance to what looked like hanging branches covered with dead leaves. But then I saw the leaves flash orange every so often, revealing what were actually thousands of tightly packed butterflies. The monarchs made their most striking sounds in the Sun, when they burst from the trees in massive fluttering plumes or landed on the ground in the tussle of mating.</p><p>Decades of educational outreach by teachers, researchers and hobbyists has cultivated a generation of monarch admirers who want to help preserve this phenomenon. This global network has helped restore not only monarchs' summer breeding habitat by planting milkweed, but also general pollinator habitat by planting nectaring flowers across North America.</p><p>Scientists have calculated that restoring the monarch population to a stable level of about 120 million butterflies will require <a href="https://doi.org/10.1111/icad.12198" target="_blank">planting 1.6 billion new milkweed stems</a>. And they need them fast. This is too large a target to achieve through grassroots efforts alone. A <a href="https://www.fws.gov/savethemonarch/CCAA.html" target="_blank" rel="noopener noreferrer">new plan</a>, announced in the spring of 2020, is designed to help fill the gap.</p>
Pros and Cons of Regulation<p>The top-down strategy for saving monarchs gained energy in 2014, when the U.S. Fish and Wildlife Service <a href="https://www.fws.gov/southeast/pdf/petition/monarch.pdf" target="_blank">proposed</a> listing them as threatened under the Endangered Species Act. A decision is expected in December 2020.</p><p>Listing a species as endangered or threatened <a href="https://www.fws.gov/endangered/esa-library/pdf/listing.pdf" target="_blank">triggers restrictions</a> on "taking" (hunting, collecting or killing), transporting or selling it, and on activities that negatively affect its habitat. Listing monarchs would impose restrictions on landowners in areas where monarchs are found, over vast swaths of land in the U.S.</p><p>In my opinion, this is not a reason to avoid a listing. However, a "threatened" listing might inadvertently threaten one of the best conservation tools that we have: public education.</p><p>It would severely restrict common practices, such as rearing monarchs in classrooms and back yards, as well as scientific research. Anyone who wants to take monarchs and milkweed for these purposes would have to apply for special permits. But these efforts have had a multigenerational educational impact, and they should be protected. Few public campaigns have been more successful at raising awareness of conservation issues.</p>
<span style="display:block;position:relative;padding-top:56.25%;" class="rm-shortcode" data-rm-shortcode-id="91165203d4ec0efc30e4632a00fdf57d"><iframe lazy-loadable="true" src="https://www.youtube.com/embed/KilPRvjbMrA?rel=0" width="100%" height="auto" frameborder="0" scrolling="no" style="position:absolute;top:0;left:0;width:100%;height:100%;"></iframe></span>
The Rescue Attempt<p>To preempt the need for this kind of regulation, the U.S. Fish and Wildlife Service approved a <a href="https://www.fws.gov/savethemonarch/pdfs/Monarch%20CCAA-CCA%20Public%20Comment%20Documents/Monarch-Nationwide_CCAA-CCA_Draft.pdf" target="_blank">Nationwide Candidate Conservation Agreement for Monarch Butterflies</a>. Under this plan, "rights-of-way" landowners – energy and transportation companies and private owners – commit to restoring and creating millions of acres of pollinator habitat that have been decimated by land development and herbicide use in the past half-century.</p><p>The agreement was spearheaded by the <a href="http://rightofway.erc.uic.edu/" target="_blank">Rights-of-Way Habitat Working Group</a>, a collaboration between the University of Illinois Chicago's <a href="https://erc.uic.edu/" target="_blank" rel="noopener noreferrer">Energy Resources Center</a>, the Fish and Wildlife Service and over 40 organizations from the energy and transportation sectors. These sectors control "rights-of-way" corridors such as lands near power lines, oil pipelines, railroad tracks and interstates, all valuable to monarch habitat restoration.</p><p>Under the plan, partners voluntarily agree to commit a percentage of their land to host protected monarch habitat. In exchange, general operations on their land that might directly harm monarchs or destroy milkweed will not be subject to the enhanced regulation of the Endangered Species Act – protection that would last for 25 years if monarchs are listed as threatened. The agreement is expected to create up to 2.3 million acres of new protected habitat, which ideally would avoid the need for a "threatened" listing.</p>
A Model for Collaboration<p>This agreement could be one of the few specific interventions that is big enough to allow researchers to quantify its impact on the size of the monarch population. Even if the agreement produces only 20% of its 2.3 million acre goal, this would still yield nearly half a million acres of new protected habitat. This would provide a powerful test of the role of declining breeding and nectaring habitat compared to other challenges to monarchs, such as climate change or pollution.</p><p>Scientists hope that data from this agreement will be made publicly available, like projects in the <a href="https://www.fws.gov/savethemonarch/MCD.html" target="_blank">Monarch Conservation Database</a>, which has tracked smaller on-the-ground conservation efforts since 2014. With this information we can continue to develop powerful new models with better accuracy for determining how different habitat factors, such as the number of milkweed stems or nectaring flowers on a landscape scale, affect the monarch population.</p><p>North America's monarch butterfly migration is one of the most awe-inspiring feats in the natural world. If this rescue plan succeeds, it could become a model for bridging different interests to achieve a common conservation goal.</p>
The annual Ig Nobel prizes were awarded Thursday by the science humor magazine Annals of Improbable Research for scientific experiments that seem somewhat absurd, but are also thought-provoking. This was the 30th year the awards have been presented, but the first time they were not presented at Harvard University. Instead, they were delivered in a 75-minute pre-recorded ceremony.