Two New (Oddball) CWA Cases

These two cases bring up issues one seldom sees in the case law, which makes them mildly interesting. Reading the clever arguments raised by defendants in the Earth Island case below reminded me of my BigLaw days when we would submit lengthy, brilliantly-written and researched briefs that would cause the court to momentarily hesitate before reaching the obvious conclusion that our client was toast.

Earth Island Institute v. Crystal Geyser Water, 2021 WL 684961 (N.D. Cal. 2021) (on motion to remand in case alleging compensatory and equitable relief for plastic pollution in the California ocean and waterways, held that state common law was not wholly displaced by the CWA; “Defendants provide no legal authority suggesting that Congress manifested an intent that federal common law completely preempt the area of marine environmental pollution or public nuisance.”)

Okanogan Highland Alliance v. Crown Resources Corp., 2021 WL 664837 (E.D. Wash. 2021) (on motion to dismiss counterclaim asking the court to require plaintiffs to account for SEP monies paid to them in prior CWA consent decrees, held that the counterclaim was not compulsory under the FRCP because it did not “arise out of the transaction or occurrence that is the subject matter of the opposing party’s claim,” in this case NPDES permit violations; counterclaim is also not permissive because it does not arise from a common nucleus of operative facts)

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