Yesterday a split three-judge panel of the Ninth Circuit Court of Appeals determined that a clay manufacturer is entitled to a new trial of Federal Clean Water Act claims against it because the District Court had instructed the jury in the first trial to follow the Ninth Circuit's old Maui "fairly traceable" test for determining the reach of the Federal Clean Water Act instead of the Supreme Court's new "functional equivalence" test for determining the same thing.  So after years of litigation and two sets of EPA regulations also purporting to determine the reach of the Federal Clean Water Act, the parties now face more litigation and the rest of us continue to face the uncertainty inherent in the case by case determination of the reach of the Federal law.  That uncertainty will continue at least until one of the other two branches of the Federal Government do their jobs.

Six Justices of the Supreme Court certainly thought the Maui "functional equivalence" test was more exacting than the "fairly traceable" test.  We'll see.  It certainly didn't make any difference in the District Court's redo of the Maui case.

The Ninth Circuit panel's analysis of the plaintiff's constitutional standing to bring the case in the first place could be more significant.  The Panel agreed that the plaintiff organization had sufficient standing to bring claims for "informational injury" and also to seek redress in the absence of a continuing discharge violating the Federal Clean Water Act so long as future discharges in violation of the Act were possible.  This is consistent with Ninth Circuit precedent regarding standing but not necessarily consistent with the standing requirement as applied in other Courts of Appeals around the country.  It isn't out of the questions that two decades after the Supreme Court tackled the standing of Environmental NGOs to bring citizen's suits in Friends of the Earth v. Laidlaw, the Supreme Court could be asked to say more soon.