Last month, in Upstate Forever v. Kinder Morgan Energy Partners, L.P., 887 F.3d 637 (4th Cir. 2018), a divided panel of the United States Court of Appeals for the Fourth Circuit vacated a lower court’s dismissal of a lawsuit brought by citizen environmental groups regarding a 2014 pipeline leak.

In a decision issued on April 12, 2018, the panel held (2-1) that (1) even though the leak has been repaired and remediation is ongoing under the supervision of the state environmental agency, plaintiffs have standing to sue, and (2) plaintiffs’ allegation that groundwater continues to carry discharged pollutants to jurisdictional waters through a “direct hydrological connection” supports liability under the Clean Water Act (CWA).

As industry members and several state attorneys general explained in amicus briefs, this ruling allows citizen groups to second-guess remedial strategies employed by state environmental agencies and expands the CWA’s regulatory reach beyond the text of the statute and congressional intent.

Factual and Legal Background

In December 2014, the Plantation Pipe Line—a 3,100-mile pipeline network running from Louisiana to Washington, DC—began to leak in Anderson County, South Carolina, and discharged gasoline and petroleum products below ground into the soil. The leak was repaired within a matter of days. Remediation efforts began promptly and continue today under the supervision of the South Carolina Department of Health and Environmental Control (SCDHEC). But in December 2016, environmental groups sued the pipeline owners under the CWA. These groups claim that the state-supervised remediation effort is inadequate and insufficient to abate the migration of pollutants through groundwater from the spill site into nearby Browns Creek and Cupboard Creek.

Under the CWA, citizens have standing to sue for injunctive relief and statutory penalties if they adequately allege an ongoing violation that the agency charged with enforcing the CWA has failed to remedy. The Supreme Court has held that the statutory text does not provide federal courts with subject matter jurisdiction to hear citizen suits regarding wholly past CWA violations. The Supreme Court reasoned that allowing citizens to sue for wholly past violations would be inconsistent with the supplementary role the citizen suit is intended to play in CWA enforcement.

The CWA prohibits pollution that is conveyed from a “point source” to navigable waters, unless the discharge has been authorized by a National Pollutant Discharge Elimination System (NPDES) permit. As detailed in 33 U.S.C. § 1362(14), a “point source” is “any discernible, confined and discrete conveyance,” including pipes, ditches, channels and tunnels. Regardless of the origin of the pollutant, the CWA prohibits discharges from point sources without a permit where pollutants enter navigable waters via a discernible, confined and discrete conveyance.

In contrast, courts have long recognized that the CWA does not regulate nonpoint source pollution. Congress instead assigned that responsibility to the states. Nonpoint sources are not “discernible, confined and discrete.” As the US Environmental Protection Agency (EPA) has stated, “nonpoint source pollution… generally results from land runoff, precipitation, atmospheric deposition, or percolation.” In the 1970s, despite being aware that pollutants in groundwater enter navigable waters, the House and Senate rejected EPA’s request to extend the CWA’s reach and grant EPA authority to regulate groundwater.

The Ruling

The majority found that “the fact that a ruptured pipeline has been repaired, of itself, does not render the CWA violation wholly past”— even though the pipeline in question has not leaked since 2014. “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.” Although the Second and Fifth Circuits have both held that past discharges with continuing effects on groundwater cannot confer CWA citizen-suit jurisdiction, the majority rejected those cases as factually distinguishable and found that the plaintiffs have standing to sue.

As to the district court’s ruling that the plaintiffs had failed to state a claim, the majority reasoned that, for liability under the CWA, the “starting point need not also convey the discharge directly to navigable waters.” All that is needed, the majority continued, is a “direct hydrological connection” via groundwater from the discharge to navigable waters. Plaintiffs alleged a cognizable violation of the CWA, the majority reasoned, because they alleged a connection between the point source and navigable waters, as well as a “traceable discharge.”

The majority relied on the recent Ninth Circuit decision in Hawaii Wildlife Fund et al. v. County of Maui. There, the court held that processed water that seeps from an underground injection well and then migrates to navigable waters through groundwater is subject to CWA NPDES permitting. The majority found “no merit” in the defendants’ concern that the holding “will result in unintended coverage under the CWA of any discharge of a pollutant into ground water.”

Implications

The majority acknowledged that existence of a “direct hydrological connection” is a fact-specific inquiry, but provided little workable guidance on what constitutes “direct.” The ruling therefore adds to the already complicated and uncertain CWA regulatory landscape. In practice, the petroleum pipeline in this case is indistinguishable from other critical infrastructure from which pollutants may seep into soil and groundwater, including groundwater recharge systems, green infrastructure, treatment ponds and landfills. Public water supply pipelines, recycled water pipelines and sanitary sewer pipelines could also affect groundwater as a result of age or episodic failures. And household septic tanks, used by 22.2 million American homes, typically release pollutants into soil and groundwater. Under the majority’s ruling, owners of all of these types of infrastructure could be subject to CWA regulation if the groundwater surrounding them is hydrologically connected to navigable waters.

Making the hydrologic and geologic determinations necessary to apply for NPDES permits to cover potential seeps to groundwater—and then implementing that permit program—will strain industry and homeowner resources. Meanwhile, state agencies that enforce the CWA will face immense administrative burdens in developing and issuing NPDES permits for so many previously-unregulated sources, likely to the detriment of other state and federal groundwater regulatory programs. Due to the nature of groundwater, it may often be infeasible or even impossible to make the determinations necessary to issue a permit. This could thwart the construction of important private and public infrastructure.

As amici argued, and Judge Floyd noted in dissent, allowing a citizen suit to proceed under the “direct hydrological connection” theory is not necessary to protect navigable waters. Indeed, the CWA places primary enforcement responsibility with the state governments. Accordingly, SCDHEC directed the pipeline owner to determine the impact of the spill and implement corrective action plans and continues to oversee that process today. And other federal environmental protection laws, such as the Comprehensive Environmental Response, Compensation and Liability Act, and the Resource Conservation and Recovery Act, provide citizen-suit jurisdiction for effectuating cleanup of groundwater contamination. State law also addresses accidental spills; South Carolina law, for example, makes polluters liable for money damages and broadly authorizes SCDHEC to mandate and oversee remediation.

On April 26, 2018, Kinder Morgan filed a petition for rehearing and rehearing en banc. That petition was supported by several amici, including local government organizations and a broad range of industry interests. Should the decision stand, it would potentially expand the scope of liability under the CWA for pipeline operators in two ways: First, it would expand liability under § 402 of the CWA to the migration of pollutants to groundwater if the groundwater at some point conveys those pollutants to navigable waters. Second, citizen suits under the CWA may be brought only for ongoing violations. Even if the conduct at issue is long past—the spill has been stopped and the discharge ceased—under this ruling a citizen suit may still be brought if the migration of groundwater continues and that migration later carries pollutants into navigable waters. The implications for state environmental agencies are also significant. The plaintiffs in Kinder Morgan explicitly seek to have the federal court second-guess the remedial plans the state environmental agency adopted to address the pipeline spill. Under this ruling, the forum for making these complex remedial decisions may shift from the expert agencies to federal court.