Home » Case Summaries » 1995 » Environmental Advocates v. City of Portland (NWEA II)


Environmental Advocates v. City of Portland (NWEA II)



The plaintiffs, Northwest Environmental Advocates (NWEA) brought this suit to enjoin the City of Portland from discharging raw sewage during times of heavy rain through combined sewer overflow (CSO) outfalls into the WillametteRiver and Columbia Slough. The district court held Portland’s discharge points were covered by its National Pollution Discharge Elimination System (NPDES) permit, and that it lacked jurisdiction to consider NWEA’s claims that Portland violated Oregon’s water quality standards.

The Ninth Circuit affirmed the district court and held that Portland’s permit covered the contested discharge points and that NWEA lacked standing to bring a citizen suit under the Clean Water Act (CWA) to enforce water quality standards contained in Portland’s permit.[1] On petition by NWEA for rehearing en banc, and in response to the U.S. Supreme Court’s decision in PUD No. 1 of Jefferson County v. Washington Department of Ecology,[2] the Ninth Circuit vacated its opinion in NWEAI.[3]

NWEA argued that Portland’s NPDES permit expressly identified only two point sources–both from a treatment plant–and did not cover any overflow into CSOs. Because the permit contained a separate schedule that allowed overflow from CSOs, albeit minimized as much as practicable during the water recreation season, the Ninth Circuit held that Portland’s NPDES permit allowed the CSO events under the conditions specified in the separate schedule. The court recognized that under CWA regulations, the permit should have contained effluent limitations for the CSOs, but found that the parties’ intent suggested they decided to omit technology-based effluent limitations for the permitted point sources. The court also rejected NWEA’s public policy argument that the CSOs were not covered by the permit because it would not be in the public interest to construe a permit so as to authorize “gross pollution of public waterways.” Citing the $1.2 billion estimated cost to revamp the Portland sewer system, the court found this alternative was not clearly in the public interest.

NWEA also argued that Portland’s CSO events violated Oregon’s water quality standards, even though Portland’s NPDES permit did not contain effluent limitations for the CSOs. Portland argued that Congress retained water quality standards as the ultimate goal of pollution control, but attempted to reach this goal through end-of-the-pipe technology-based effluent limitations. Accordingly, Portland concluded that NWEA could not sue to enforce water quality standards regarding the CSOs because the standards had not been translated into technology-based effluent limitations. The Ninth Circuit reversed the district court’s finding that NWEA lacked standing to enforce water quality standards that had not been translated into effluent discharge limitations.

The Ninth Circuit found that the CWA allowed citizen suits for violations of effluent standards because effluent standards can be defined as “a permit or condition thereof.” Because Portland’s permit required that no wastes be discharged that would violate water quality standards, the court concluded that citizen suits could be brought to enforce Portland’s permit. In addition, the court held that while the 1972 amendments to the CWA reflected Congress’s intent to improve and simplify enforcement through effluent limitations, the amendments did not supplant the water quality standards. The court relied on the U.S. Supreme Court’s holding in JeffersonCounty, and other cases that support citizen suit jurisdiction, to bolster its conclusion that NWEA had standing to enforce the water quality standards contained in Portland’s NPDES permit. The court found citizen suit enforcement of water quality standards was necessary to effectively enforce the CWA’s standards that cannot be expressed quantitatively, such as those that apply in this case to bacterial pollution, aesthetic conditions, objectionable matter, and to the overflow from irregular CSO events.

In dissent, Judge Andrew Kleinfeld argued that water quality standards that have not been translated by permit into effluent limitations cannot be enforced through citizen suits. He asserted that Congress intended the permit issuing authority to set end-of-the-pipe effluent standards for a permit, which could be based on water quality standards, but would not grant standing for a citizen suit where the permittee complied with end-of-the-pipe discharge limitations but the water still became polluted. Water quality standards, Judge Kleinfeld noted, are useful to government agencies because they provide goals, but they are too “uncertain and amorphous” to be used as specific pollutant standards against specific polluters.

In January 1996, Portland filed an amended petition for rehearing en banc of the decision in NWEA II. The rehearing failed to receive a majority of the votes for en banc reconsideration, which prompted a lengthy dissent by Judges Diarmuid O’Scannlain, Cynthia Hall, Thomas Nelson, and Andrew Kleinfeld. They argued that the NWEA II majority misread JeffersonCounty. Instead of supporting the notion that citizens may sue to challenge permit conditions that have not been translated into effluent limitations, the dissent argued that JeffersonCounty stood only for the principle that states may impose certain water quality requirements on federal permit applicants that operate as conditions for granting required state certification. It is then up to the authorities, not citizens, to enforce the standards.

The dissent also contended that the Ninth Circuit’s holding in Oregon Natural Resources Council v. United States Forest Service[4] (that the CWA forbids citizens from suing to enforce water quality standards under section 301[5]) should be extended to prohibit suits by citizens trying to enforce water quality standards contained in permits similar to Portland’s permit. Noting that the Fifth and Second Circuits held that citizens do not have the right to enforce state water quality standards contained in permits, the dissent concluded that the NWEA II majority created a needless intercircuit conflict and a cause of action that Congress never intended.

[1]Northwest Envtl. Advocates v. City of Portland (NWEA I), 11 F.3d 900 (9th Cir. 1993).

[2]511 U.S. 700 (1994) (holding that the state may require a permit applicant to comply with the qualitative designated uses requirement reflected in the applicable water quality standards).

[3]The court reversed its previous opinion, holding that Portland’s NPDES permit covered the CSO outfalls and that NWEA had standing to bring citizen suits to enforce broad state water quality standards included as conditions of NPDES permits even though the permit failed to translate water quality standards into numeric end-of-pipe effluent limitations.

[4]834 F.2d 842 (9th Cir. 1987).

[5]33 U.S.C. § 1311 (1994).

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