The ruling in Upstate Forever and Savannah Riverkeeper v. Kinder Morgan Energy Partners, LP expands the rights of citizens groups to bring suits for penalties and injunctive relief under the Clean Water Act even when a state EPA is actively involved in addressing the issue.  Furthermore, the court ruling allows claims to be brought even when the original spill ceased and all that remains is ongoing migration from a historical spill.

Factual Background

Back in 2014, a leak occurred in the Plantation Pipe Line which runs from Louisiana to Washington, D.C.  The leak resulted in the discharge of gasoline and petroleum below ground.  While the leak was repaired quickly, cleanup has been ongoing for a number of years.  The cleanup has been supervised by the South Carolina Department of Health and Environmental Control (SCDHEC).  In 2016, environmental groups brought suit claiming the cleanup has been inadequate to prevent migration of pollution into nearby waterways.

Issues Presented

The suit raised a number of important issues:

  • Typically, where state or federal regulators have taken affirmative action to address a violation, such regulatory action bars citizens from bringing suit. Why not here?
  • When a spill has stopped do citizen groups still have authority to assert a claim?
  • Does subsurface pollution that migrates to waterways fall within the scope of the Clean Water Act as a prohibited discharge
    • The Clean Water Act regulates “point source” discharges which are “any discernible, confined and discrete conveyance,” including pipes, ditches, channels and tunnels. 33 U.S.C. § 1362(14)

Fourth Circuit Rules the Environmental Groups Could Bring Suit

The Court did not directly address the extent of state involvement in the cleanup.  However, the cleanup was only being performed in accordance with “guidance” from the SCDHEC, not under a formal judicial consent order which would bar a subsequent citizen’s suit.  While the Company was working with state regulators to cleanup the spill, the State never took formal enforcement to cutoff citizen suits.

The Court ruled the spill was not a “wholly past violation.”  While the pipeline was fixed, the spill left contaminants in the ground that were still migrating to nearby waterways.  The Court found that the pipeline was a point source and even though the pipeline was repaired, ongoing violations were occurring due to migration of contamination to waterways from the original spill. The Court held:

“The CWA’s language does not require that the point source continue to release a pollutant for a violation to be ongoing. The CWA requires only that there be an ongoing ‘addition… to navigable waters,’ regardless whether a defendant’s conduct causing the violation is ongoing.”

The Court rejected other court rulings that held such ongoing migration of pollution did constitute wholly past violations.  It distinguished this case from a prior ruling that held decomposition of lead shot was not an ongoing violations.  Conn. Coastal Fisherman’s Ass’n v. Remington Arms Co., 989 F. 2d 1305, 1312-13 (2d Cir. 1993).  With regard to the case of lead shot, in contrast to the Kinder Morgan case, the pollutants had already been deposited into a waterway.  Here, pollution was still entering nearby waterways from the historical spill.

Finally, the Court held that violations of the Clean Water Act are not limited to “direct discharges” to a waterway.  The Clean Water Act also covers “indirect discharges,” in this case pollution migrating through groundwater and entering nearby waterways.  However, the Court cautioned, the connection between a point source of pollution and a waterway must be clear (i.e. a “direct hydrological connection”).

The Trump Administration has made rollback of environmental regulations a top priority.  Through the use of Executive Orders and the Congressional Review Act(CRA), the Administration has already undone significant Obama era regulations, including the Waters of the U.S. Rule (WOTUS) and the Clean Power Plan.

The Trump Administration has also proposed significant budget cuts to EPA which could result in the reduction of 31% in federal funds to EPA and result in layoffs of 3,200 EPA workers. Budget cuts to State EPAs through reduction of state categorical grants have also been proposed. These cuts to federal funds could lead to reduced staff at State EPAs across the country.  

While the regulatory rollback and reduction in EPA staffs move forward, donations to major environmental groups around the country have surged since the election.  As reported in the Washington Times, the Sierra Club has reported an increase of 700% in donations since the election.  Across the board, green groups, like the NRDC are reporting a surge in donations.

Putting the New Money to Work

Whether it is the EPA budget reductions or EPA’s exercising enforcement discretion, most anticipate EPA federal environmental enforcement will be on the decline under the Trump Administration. While EPA may not bring suits, many long time environmental legal practitioners anticipate a surge in green groups use of citizen suit provisions to fill the void on enforcement.  

Almost all of the major federal environmental statutes include a "citizen suit" provision that allows individuals and groups harmed by environmental violations to step in the shoes of EPA and sue companies to address violations and pay civil penalties.  Such provisions are included in the Clean Air Act, Resource Conservation and Recovery Act (RCRA) and the Clean Water Act.  Why do many anticipate a surge in such suits?

  • Justify Donations– Green groups will show that increased donations are being put to work by taking enforcement to fill the void left by a less active EPA;
  • Easy Access to Monitoring Data Permit compliance and monitoring data is readily accessible online through EPA databases like ECHO or state database counterparts.  This makes it increasingly easier for green groups to identify violations that have gone unaddressed;
  • Civil Penalties-  The citizen suit provisions allow groups to assess civil penalties.  Under law, any civil penalties must go to the U.S. Treasury.  However, groups have used creative approaches like Supplemental Environmental Projects (SEPs) to direct funds to environmental improvement projects or funding local groups;
  • Attorney Fees- Perhaps the biggest incentive to utilize citizen suit provisions is the attorney fee provision.  Courts have established a low threshold for recovery of fees.  This makes it easy for groups to recover their investigatory and legal expenses in pursuing actions; and
  • Lack of Availability of the Diligent Prosecution Defense-  Not only will reductions in EPA staff and resources lead to less enforcement, it also makes it less likely that companies will be able to secure "friendly" administrative or judicial enforcement orders used to block citizen suits during notice periods.  The 60 or 90 day notice periods are meant to give time to allow for state or federal regulators to take appropriate action to resolve violations after receiving notice of a potential citizen suit (i.e. "diligent prosecution" defense).

"New" Citizen Suit Legal Theories

In is not just an anticipated increase in the number of citizen suit actions brought, most see an expansion of the types of harms such suits are used to address.  Across the country, green groups have already utilized long-standing citizen suit provisions to bring creative new causes of action, including:

  • Tennessee Riverkeeper, Inc. v 3M Company- Environmental group have brought a RCRA imminent and substantial endangerment claim against 3M for historical releases of teflon related substances (PFOA/PFOS) which are not currently regulated by EPA.  The Court denied a motion to dismiss the action;
  • Sierra Club v. Chesapeake Operating LLC- Brought RCRA imminent and substantial endangerment claim for earthquakes in Oklahoma allegedly caused by disposal of water from oil and gas extraction;
  • Conservation Law Foundation v. ExxonMobil Corp.-  Alleging imminent and substantial endangerment under RCRA due to climate change; and
  • Upstate Forever and Savannah Riverkeeper v. Kinder Morgan–  Claims brought under the Clean Water Act alleging passive migration of contaminated groundwater to surface water from an oil spill was a violation of the Clean Water Act.  The case was dismissed after the Judge ruled plaintiffs failed to allege facts demonstrating migration of groundwater constituted a "point source" under the Clean Water Act.

Suing EPA to Compel Non-Discretionary Acts

Green groups have always sued EPA to compel the Agency to promulgate regulations or take action that are required under environmental statutes. The Administrative Procedure Act (APA) allows green groups to bring suit to compel an agency action unlawfully withheld or unreasonably delayed. See, 5 U.S.C. Section 706(1).  

Because the Trump Administration will be less inclined to promulgate new environmental regulations, there will almost certainly be a major increase in suits against EPA to compel action. Unlike under the Obama Administration, which resolved many of these suits using consent orders, the Trump Administration will be far less inclined to settle.  This will inevitably lead to long and protracted litigation.  A recent article in the Legal Intelligencer by Kenneth J. Warren discusses the complications for Courts facing these suits to compel EPA to perform non-discretionary duites.