Attorneys Debate Right to Sue in Clean Water Hearing

PORTLAND, Ore. (CN) – Attorneys defending an electric company in a hearing attacked one of environmentalism’s most effective tools – citizens’ ability to sue when government agencies don’t enforce environmental laws.

U.S. District Judge Michael Simon heard arguments in the District of Oregon Friday over whether to dismiss a challenge to the operation of three dams on the Deschutes River. But something much larger than water temperature in a mid-sized river in southern Oregon was at stake. Attorneys for Portland General Electric claimed environmental groups can’t sue to enforce the conditions of permits issued under the Clean Water Act, such as water temperature and oxygenation levels of water spewed from a dam.

PGE lawyer Beth Ginsberg  argued that the Clean Water Act authorized lawsuits to force companies to get legally required permits for any activity that involves “a discharge into navigable waters” of the United States. But she claimed the act doesn’t allow people to sue over enforcement of the content of such a certification process.

To address its contention that PGE wasn’t living up to the specific terms of its permit, the Deschutes River Alliance should have petitioned the Federal Energy Regulatory Commission (FERC), which issued PGE’s permit to operate three dams in its Pelton Round Butte Hydroelectric Project, Ginsberg claimed.

“Congress said not all subsections of the Clean Water Act are eligible for a citizen suit,” Ginsberg said. “Instead of making the certification process separately enforceable, Congress decided the enforcement mechanism would be enforceable by FERC. And FERC has a petition process that plaintiffs could use.”

A ruling that interprets the Clean Water Act as Ginsberg suggests could shut down the process that has become a cornerstone of forcing government agencies to obey environmental laws, according to Dan Galpern, lawyer for the Deschutes River Alliance.

Galpern told the judge that the Federal Energy Regulatory Commission has the legal authority to simply ignore such petitions. And the Ninth Circuit has upheld FERC’s decisions not to investigate such claims.

“PGE argues that if this court found we don’t have the ability to bring a citizen suit, we’d still have the petition process under FERC,” Galpern said. “But those avenues are likely to be dead ends. As your honor pointed out, FERC retains virtually unbridled discretion to refuse to act, even when presented with clear violations.”

Because of laws prohibiting “two bites at the apple,” as Judge Simon phrased it, environmental groups who were stymied by an FERC decision to ignore a petition wouldn’t have the ability to sue over the same issue.

Simon seemed sympathetic to Galpern’s argument.

“The fact that FERC can do something under its petition process doesn’t answer the issue because plaintiffs have to make a choice,” Simon said. “Either file a citizen suit or petition FERC. They can’t do both. And that loops us back to the purpose of a citizen suit.”

“Exactly,” Galpern said. “There is no good, viable option for my clients to restore the river and enforce basic provisions of the Clean Water Act without the basic ability to file a citizen suit.”

Simon didn’t say when he expected to rule, but he hinted that the case might have a life beyond his decision.

“To the extent that you’re right that I’m the first court to struggle with this question, I’m sure I won’t be the last,” Simon told Ginsberg.

“I would tend to agree with your honor,” Ginsberg said.