RICHMOND (CN) – The Fourth Circuit on Thursday said environmentalists can continue to press claims that a ruptured gas line, since repaired, is an ongoing violation of the Clean Water Act because a plume from the spill continues to pollute navigable waters of the United States.
The 2-1 opinion reverses the ruling of a lower court, which had said it had no subject-matter jurisdiction over the case because the pipeline has been repaired and the pollutants at issue are passing through ground water to reach navigable waters.
Writing for the majority,U.S. Circuit Judge Barbara Milano Keenan said the lower court erred because federal law allows citizens to bring suits for the discharge of pollutants that derive from a “point source” and continue to be “added” to navigable waters.
Holding that the plaintiff environmental organizations, Upstate Forever and Savannah Riverkeeper, stated a valid claim under the Clean Water Act, Keenan remanded the case back to the lower court for further proceedings.
The underlying lawsuit stemmed from a 2014 gasoline line rupture near Belton, South Carolina. The plaintiffs sued the pipeline’s owners, Kinder Morgan Energy Partners LP and Plantation Pipe Line Company Inc., claiming both that the spill dumped several hundred thousand gallons of gas into the ground, and that the pollutants continued to leech their way through the groundwater in the area to two creeks that feed into the Savannah River.
The Clean Water Act regulates pollution in U.S. waters, and can be used by both citizens and the government to bring suit against violators. But the law also says suits can only be brought under act if the pollution is ongoing.
In this case, Kinder Morgan has repaired the pipeline and done some remediation of the site surrounding it.
But Judge Keenan said under federal law “abatement of a pollutant requires more than the repair of a pipeline, and the need for such abatement continues so long as the contaminant continues to flow into navigable waters.”
The question then was whether the plaintiffs had filed a valid claim under the act.
Kennan noted that the 1972 defines the phrase “discharge of a pollutant” quite expansively, and that the definition includes “any addition of any pollutant to navigable waters from any point source.”
It further defined “point source” as “any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, [or] container.”
The Supreme Court, in Rapanos v. United States, later interpreted the term “navigable waters” to mean more than waters that are navigable-in-fact, and to include, for example, wetlands and related hydrological environs.”
Citing these factors and the application of the standard by the Second and Ninth Circuits, Kennan concluded the plaintiffs had stated a valid claim. Chief U.S. Circuit Judge Roger Gregory joined the majority opinion.
In doing so, the judges said they found no merit in Kinder Morgan’s concern “that our holding will result in unintended coverage under the CWA of any discharge of a pollutant into ground water.”
“We do not hold that the CWA covers discharges to ground water itself,” Kennan wrote. “Instead, we hold only that an alleged discharge of pollutants, reaching navigable waters located 1000 feet or less from the point source by means of ground water with a direct hydrological connection to such navigable waters, falls within the scope of the CWA.”
In dissent, U.S. Circuit Judge Henry Franklin Floyd said on first glance, the majority’s conclusion “may seem intuitive.”
But “close examination of the text, history, and structure of the CWA reveals that not every addition of pollution amounts to a CWA violation — much less an ongoing CWA violation,” he said.
“Congress precisely defined a CWA violation as the addition of pollutants from a point source, and for there to be an ongoing CWA violation, there must be an ongoing addition of pollutants from a point source into navigable waters,” Floyd continued. “Here, the only point source at issue — Kinder Morgan’s pipeline — has been repaired and is not currently adding any pollutants into navigable waters, thus negating a necessary element of a CWA violation.”
He concluded: “Because there is no ongoing violation under the meaning of the CWA, I would affirm the district court’s dismissal of the complaint for lack of subject matter jurisdiction and for failure to state a claim upon which relief can be granted.”
Kinder Morgan spokeswoman Melissa Ruiz expressed disappointment with the decision and pointed to other appeals courts — notably, the Sixth Circuit — which have found pollution beyond federal dumping permits, no matter the source, was not a violation of the Clean Water Act, but instead something that should be addressed through administrative means.
“[This opinion results] in inconsistent interpretations of the scope of the Clean Water Act,” she said in an email. “We are evaluating our options on the best course of action going forward.”
Shelley Hudson Robbins, energy and state policy director for Upstate Forever, said residents of Anderson County, South Carolina, where the spill occurred, will reap the benefits of the decision.
“Those of us who live near this type of infrastructure cannot feel safe until the companies that build and operate these pipelines invest properly in maintenance and leak detection,” Robbins said in an email to Courthouse News. “They are making tremendous profits in our backyards. Our hope is that this ruling emphasizes the need for heightened vigilance when hazardous materials are transported through communities that benefit very little from that infrastructure.”