By Carl Jones and Rebecca Andrews

The Ninth Circuit Court of Appeals, on September 20, 2021, vacated a U.S. District court’s grant of partial summary judgment and jury instructions. The court found that an ongoing discharge violation is not a prerequisite to a citizen suit asserting ongoing monitoring and reporting violations. [Inland Empire Waterkeeper and Orange County Coastkeeper v. Corona Clay Co., 13 F.4th 917 (9th Cir. 2021).]

Factual and Procedural Background

The Corona Clay Company (Corona) processes clay products at an industrial facility overlooking Temescal Creek in Corona, California. Inland Empire Waterkeeper and Orange County Coastkeeper (“Coastkeeper”) are two affiliated nonprofit organizations with the mission of protecting water quality and aquatic resources in Orange and Riverside Counties.

Storm water discharges from Corona’s industrial processing activities are regulated under a statewide general National Pollutant Discharge Elimination System (NPDES) permit (General Permit). The General Permit includes requirements to sample storm water discharges, and if the discharge exceeds specified pollutant levels, specific response actions are required.

In 2018, Coastkeeper filed a citizen suit under the federal Clean Water Act (CWA) alleging that Corona illegally discharged pollutants into the navigable waters of the United States, failed to monitor that discharge as required by the General Permit, and violated the conditions of the permit by failing to report violations. The District Court granted partial summary judgment for Coastkeeper after finding, with no dispute, that Corona had violated various requirements imposed by the General Permit and that the discharge was flowing into Temescal Creek.

On the remaining issues, the District Court instructed the jury that Coastkeeper must prove either a prohibited discharge after the complaint was filed, or a reasonable likelihood that discharge would recur. In issuing the jury instructions, the court determined Coastkeeper was required to show not only a monitoring violation, but also ongoing discharge violations to bring a CWA citizen suit.

The District Court’s jury instructions asked the jury to determine two questions: First, whether Corona had discharged pollutants into “waters of the United States” and whether the discharge occurred after the complaint was filed. Second, whether the storm water discharge adversely affected the beneficial uses of Temescal Creek. The jury was also instructed to only answer the second question if it answered the first question in the affirmative. After the jury answered “No” to the first question, the court entered a final judgment in favor of Corona. Both parties appealed.

The Ninth Circuit’s Decision

Standing

The Ninth Circuit first considered and rejected Corona’s arguments that Coastkeeper lacked standing to bring the action. To have standing, an organizational plaintiff must have a concrete and particularized injury fairly traceable to the challenged conduct that likely can be redressed by a favorable judicial decision. The court determined Coastkeeper showed standing by sworn testimony from several members that they lived near the creek, used it for recreation, and that pollution from the discharged storm water impacted their present and anticipated enjoyment of the waterway. The court then determined that failure to provide information can give rise to an injury for purposes of standing. Coastkeeper’s allegations that Corona failed to file reports required by the General Permit was an injury in fact that could support Coastkeeper’s standing.

Jury Instructions

The Circuit Court next considered the District Court’s conclusion and jury instructions that a CWA suit alleging monitoring and reporting violations can only lie if there are also current prohibited discharges. Under this analysis, the Ninth Circuit first considered a Supreme Court decision issued after the District Court’s final judgment, which determined that a National Pollutant Discharge Elimination System permit is required when discharge flows directly into navigable waters or when there is a “functional equivalent of a direct discharge.” Here, the Ninth Circuit noted that the District Court failed to ask the jury whether Corona’s indirect discharge amounted to a “functional equivalent” of a discharge.

Demonstration of Ongoing Discharge Violations as Prerequisite to Citizen Suit

The Ninth Circuit then considered whether the District Court erred by requiring Coastkeeper to demonstrate ongoing discharge violations in order to bring a citizen suit alleging monitoring and reporting violations. Under current Supreme Court case law, entirely past violations which are not likely to recur cannot support a citizen suit seeking injunctive relief. In support of the District Court’s decision, Corona asserted Congress left violations of monitoring and reporting requirements to regulatory agencies alone. The Ninth Circuit rejected the District Court’s conclusion and Corona’s assertion, reasoning that an ongoing discharge violation is not a prerequisite to a citizen suit asserting ongoing monitoring and reporting violations; the CWA allows a citizen suit based ongoing or imminent procedural violations. Because the District Court’s partial summary judgement was predicated on Corona’s admitted discharge and the jury instructions required Coastkeeper to prove elements not required by the CWA, the Ninth Circuit vacated the jury verdict and remanded for further proceedings in light of recent Supreme Court caselaw.

Conclusion and Implications

Because the District Court’s partial summary judgement was predicated on Corona’s admitted discharge and the jury instructions required Coastkeeper to prove elements not required by the CWA, the Ninth Circuit vacated the jury verdict and remanded for further proceedings in light of recent Supreme Court caselaw.

This case affirms that if a prohibited discharge into waters of the United States occurred, a Clean Water Act citizen suit can be premised on ongoing or reasonably expected monitoring or reporting violations. The court’s decision is available online at: https://cdn.ca9.uscourts.gov/datastore/opinions/2021/09/20/20-55420.pdf; or at: https://scholar.google.com/scholar_case?case=5623238957513399786&hl=en&as_sdt=6&as_vis=1&oi=scholarr