The U.S. Solicitor General has encouraged the U.S. Supreme Court to review a case that carries major implications for coal ash cleanup efforts, and the results of a soon-to-be-completed U.S. Environmental Protection Agency review could play a key role in the proceedings.
In a brief filed Jan. 3 at the request of the high court, the Solicitor General said justices should hear a case to resolve a so-called "circuit split" on whether the Clean Water Act applies to pollution that travels to federally protected surface waters via groundwater. The Solicitor General also said the EPA has informed its office that it expects to take "further action" following a review of the question "within the next several weeks."
Federal appeals courts are divided on the issue following a series of rulings by the U.S. Court of Appeals for the 4th, 6th and 9th Circuits, with defendants in the 4th and 9th Circuit decisions both petitioning the Supreme Court for review.
The Solicitor General in its brief said the high court should review the 9th Circuit's decision in County of Maui v. Hawai'i Wildlife Fund (No. 18-260) because "it provides the better vehicle for resolving the circuit conflict." In that decision, the 9th Circuit held that the County of Maui was liable under the Clean Water Act for unpermitted discharges from county-operated wells because the pollution traveled through groundwater to the Pacific Ocean.
In doing so, the court rejected the county's argument that a "point source" — defined by the Clean Water Act as a "discrete conveyance" such as a well — must convey the pollutants directly into federally protected waters to trigger liability under the statute. The 9th Circuit's rationale subsequently was dubbed the "fairly traceable" theory.
In a similar ruling, the 4th Circuit found in Kinder Morgan Energy v. Upstate Forever (No. 18-268) that the company was liable under the Clean Water Act for hundreds of thousands of gallons of gasoline spilled from a ruptured pipeline. Using a "direct hydrological connection" theory, the court found that Kinder Morgan Energy Partners LP was liable for pollution transported via groundwater to protected rivers, lakes and wetlands.
However, a divided three-judge panel for the 6th Circuit disagreed with both of those theories in a pair of rulings concerning coal ash pollution. In Kentucky Waterways Alliance et al. v. Kentucky Utilities Co. (No. 18-5115), the panel rejected plaintiffs' claims that Kentucky Utilities Co. should be held liable for pollution seeping from one of its coal ash storage sites into nearby Herrington Lake. "For a point source to discharge into navigable waters, it must dump directly into those navigable waters — the phrase 'into' leaves no room for intermediary mediums to carry the pollutants," the majority wrote.
The panel applied the same reasoning in Tennessee Clean Water Network et al. v. Tennessee Valley Authority (No. 17-6155), which also involved claims that pollutants from coal ash ponds had been conveyed through groundwater into the Cumberland River.
In both cases, the 6th Circuit panel noted that the Resource Conservation and Recovery Act, or RCRA, covers the storage and handling of solid waste such as coal ash. But environmental groups have noted that RCRA claims involve satisfying a higher burden of proof that many polluted communities cannot afford to meet.
Noting the disagreement about the Clean Water Act's applicability to discharges through groundwater, the EPA in February 2018 requested public comment on the matter. In its Jan. 3 brief, the Solicitor General said the agency has informed its office that it expects further action "reflecting the results of its review, within the next several weeks."
In its original request for comment, the EPA said further action could come as "memoranda, guidance, or in the form of rulemaking," which the agency could use to "provide additional certainty for the public and the regulated community." According to the Solicitor General, if the Supreme Court decides to resolve the circuit split, "the parties therefore should have the benefit of the EPA's views" before legal briefs are due. The high court then could "consider those views in deciding the issue on the merits," according to the brief.
The Solicitor General did not outline the U.S. Justice Department's official position on the matter. In 2016, however, the EPA under the Obama administration submitted its own amicus brief in County of Maui v. Hawai'i Wildlife Fund arguing that the hydrological connection theory is consistent with the agency's longstanding position on groundwater pollution.