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Northwest Envtl. Advocates v. City of Portland


This case involved the denial for rehearing and the denial of the suggestion for rehearing en banc that was requested by the City of Portland after the Ninth Circuit’s decision in Northwest Envtl. Advocates v. City of Portland (NWEA II).[1] This series of cases dealt with violations of water quality standards that occur when rainflow exceeds the city treatment plant’s capacity, causing the release of untreated sewage through a system of combined sewer overflow (CSO) outfalls into the Columbia and Willamette Rivers. The issue in these cases was whether citizens can bring suit to enforce water quality standards for which there are no set end-of-pipe effluent limitations.

In the original case, Northwest Envtl. Advocates v. City of Portland, (NWEA I),[2] the Ninth Circuit held that citizens lack standing under the Clean Water Act to enforce water quality standards that are conditions of a NPDES permit because such standards do not constitute an “effluent standard or limitation” under 33 U.S.C. § 1365 (a) and (f). However, the Ninth Circuit panel accepted petition for rehearing of their decision in light of the recently decided Supreme Court case of PUD No. 1 of Jefferson County v. Washington Dep’t of Ecology.[3] Relying on this decision, the panel vacated its opinion in NWEA I and instead held that citizens do not lack standing under the Clean Water Act to enforce water quality standards. After this reversal, the City of Portland petitioned for rehearing and also suggested a rehearing en banc. The petition was denied in this case without a supporting opinion, but Judge O’Scannlain did write an opinion for the dissent, which is summarized below.

The dissent suggested that the Jefferson County case was misused and did not support reversal of the panel’s earlier holding in NWEA I. It also pointed out how this decision not only conflicts with the other circuits, but also conflicts with a prior decision of the Ninth Circuit.

Jefferson County involved a state imposing a stream flow condition as part of the state’s certification process for a federal permit to build a hydroelectric power plant.[4] The Supreme Court held that these limitations made by the state were appropriate requirements that would enable the state to ensure the power plant’s compliance with the state water quality standards and other applicable state law.[5] However, this case had nothing to do with citizen’s standing and in no way supports the holding of the majority in NWEA II.

The dissent explained that the court’s holding also conflicts with a similar case it had previously decided. In Oregon Natural Resources Council v. United States Forest Serv.,[6] the court allowed citizen suits to enforce permit conditions that had been derived from water quality standards, but did not allow citizens to enforce the water quality standards themselves. The Court’s holding regarding enforcement by citizens of water quality standards under § 1311(b)(1)(C) could be logically extended to enforcement by citizens of water quality standards in a permit.

Finally, the dissent pointed out that no other circuits have agreed with the majority’s holding, and in fact other circuits have explicitly ruled out citizen suit enforcement of water quality standards contained in permits. The dissent concluded that Congress never intended this result and rehearing should have been allowed because this holding will reshape federal environmental law.

[1]56 F.3d 979 (9th Cir. 1995).

[2]11 F.3d 900 (9th Cir. 1993).

[3]114 S.Ct. 1900 (1994).

[4] Id. at 1905.

[5] Id. at 1914.

[6]834 F.2d 842 (9th Cir. 1987).

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