SCOTUS Dumps the 9th Circuit Again

This morning’s news from the marble temple in Washington includes an environmental decision: Los Angeles County Flood Control District v. National Resource Defense Council, No. 11-46, Jan. 8, 2013. Quoting from the court’s syllabus:

 ”Held: Flow of water from an improved portion of a navigable waterway into an unimproved portion of the same waterway does not qualify as a ‘discharge of a polllutant’ under the C[lean] W[ater] A[ct].”

But though it is “the law,” we have some problems accepting the idea that the improved part of the Los Angeles River is “navigable.” We have lived in the LA area for well over a half century, and have never seen any boats in the “improved” parts of the LA River which is a bare, concrete lined channel that is either dry (or nearly so), or filled with rushing water when it rains, into which no sane person would launch a boat. That’s the dry concrete channel in which movie cops and robbers engage in those thrilling car chases. And in real life, during the rainy season, it occasionally provides scenes of breathtaking rescues of the unfortunates who somehow fall into the rushing water. At those times, you sure don’t want to be in it, in a boat or — God forbid! — without one.

For a link to the opinion click on http://www.supremecourt.gov/opinions/12pdf/11-460_3ea4.pdf .

And  by the way, we like better the formulation of the same holding as phrased by the Second Circuit. Quoth Justice Ginsburg:

“As the Second Circuit [aptly] put it. . . , ‘[i]f one takes a ladle of soup from a pot, lifts it above the pot, and pours it back into the pot, one has not “added”soup or anything else to the pot.’” Miccosukee, 541 U. S., at 109–110 (quoting Catskill Mountains Chapter of Trout Unlimited, Inc. v. New York, 273 F. 3d 481, 492 (CA2 2001)).


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