Upstate Forever v. Kinder Morgan Energy Partners, L.P.

• Decision Date: 12 April 2018
• Docket Number: No. 17-1640,17-1640
• Citation: 887 F.3d 637
• Parties: UPSTATE FOREVER; Savannah Riverkeeper, Plaintiffs-Appellants, v. KINDER MORGAN ENERGY PARTNERS, L.P.; Plantation Pipe Line Company, Inc., Defendants-Appellees. Anderson County, South Carolina; Pipeline Safety Trust, Amici Supporting Appellant, American Petroleum Institute; Association of Oil Pipe Lines ; GPA Midstream Association ; Texas Pipeline Association ; National Association of Counties; National League of Cities; National Association of Clean Water Agencies; American Forest and Paper Association; American Iron and Steel Institute; Edison Electric Institute; National Mining Association; Utility Water Act Group; State of West Virginia; State of South Carolina; State of Alabama; State of Arkansas; State of Indiana; State of Kansas; State of Louisiana; State of Missouri; State of Oklahoma; State of Utah; State of Wisconsin; Governor Phil Bryant, Amici Supporting Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

887 F.3d 637

UPSTATE FOREVER; Savannah Riverkeeper, Plaintiffs-Appellants,

v.KINDER MORGAN ENERGY PARTNERS, L.P.; Plantation Pipe Line Company, Inc., Defendants-Appellees.

Anderson County, South Carolina; Pipeline Safety Trust, Amici Supporting Appellant,

American Petroleum Institute; Association of Oil Pipe Lines ; GPA Midstream Association ; Texas Pipeline Association ; National Association of Counties; National League of Cities; National Association of Clean Water Agencies; American Forest and Paper Association; American Iron and Steel Institute; Edison Electric Institute; National Mining Association; Utility Water Act Group; State of West Virginia; State of South Carolina; State of Alabama; State of Arkansas; State of Indiana; State of Kansas; State of Louisiana; State of Missouri; State of Oklahoma; State of Utah; State of Wisconsin; Governor Phil Bryant, Amici Supporting Appellee.

No. 17-1640

United States Court of Appeals, Fourth Circuit.

Argued: December 7, 2017

Decided: April 12, 2018

ARGUED: Frank S. Holleman, III, SOUTHERN ENVIRONMENTAL LAW CENTER, Chapel Hill, North Carolina, for Appellants. James P. Cooney, III, WOMBLE BOND DICKINSON (US) LLP, Charlotte, North Carolina, for Appellees. ON BRIEF: Christopher K. DeScherer, SOUTHERN ENVIRONMENTAL LAW CENTER, Charleston, South Carolina, for Appellants. Richard E. Morton, Todd W. Billmire, Jackson R. Price, Charlotte, North Carolina; Clayton M. Custer, WOMBLE CARLYLE SANDRIDGE & RICE, LLP, Greenville, South Carolina, for Appellees. Catherine H. McElveen, RICHARDSON, PATRICK, WESTBROOK & BRICKMAN, LLC, Mount Pleasant, South Carolina, for Amicus Pipeline Safety Trust. Leon C. Harmon, Anderson, South Carolina, for Amicus Anderson County, South Carolina. Alan Wilson, Attorney General, Robert Cook, Solicitor General, J. Emory Smith, Jr., Deputy Solicitor General, OFFICE OF THE ATTORNEY GENERAL, Columbia, South Carolina, for Amicus State of South Carolina. Patrick Morrisey, Attorney General, Thomas M. Johnson, Jr., Deputy Solicitor General, John S. Gray, Deputy Attorney General, Charleston, West Virginia, for Amicus State of West Virginia. Steve Marshall, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF ALABAMA, Montgomery, Alabama, for Amicus State of Alabama. Leslie Rutledge, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF ARKANSAS, Little Rock, Arkansas, for Amicus State of Arkansas. Curtis T. Hill, Jr., Attorney General, OFFICE OF THE ATTORNEY GENERAL OF INDIANA, Indianapolis, Indiana, for Amicus State of Indiana. Derek Schmidt, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF KANSAS, Topeka, Kansas, for Amicus State of Kansas. Jeff Landry, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF LOUISIANA, Baton Rouge, Louisiana, for Amicus State of Louisiana. Joshua D. Hawley, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF MISSOURI, Jefferson City, Missouri, for Amicus State of Missouri. Mike Hunter, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF OKLAHOMA, Oklahoma City, Oklahoma, for Amicus State of Oklahoma. Sean D. Reyes, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF UTAH, Salt Lake City, Utah, for Amicus State of Utah. Brad Schimel, Attorney General, WISCONSIN DEPARTMENT OF JUSTICE, Madison, Wisconsin, for Amicus State of Wisconsin. Samuel L. Brown, HUNTON & WILLIAMS LLP, San Francisco, California; Nash E. Long, III, Brent A. Rosser, HUNTON & WILLIAMS LLP, Charlotte, North Carolina; Michael R. Shebelskie, HUNTON & WILLIAMS LLP, Richmond, Virginia, for Amici National Association of Counties, National League of Cities, National Association of Clean Water Agencies, American Forest and Paper Association, American Iron and Steel Institute, Edison Electric Institute, National Mining Association, and Utility Water Act Group. David H. Coburn, Cynthia L. Taub, STEPTOE & JOHNSON LLP, Washington, D.C., for Amici American Petroleum Institute, Association of Oil Pipe Lines, GPA Midstream Association, and Texas Pipeline Association.

Before GREGORY, Chief Judge, and KEENAN and FLOYD, Circuit Judges.

Vacated and remanded by published opinion. Judge Keenan wrote the majority opinion, in which Chief Judge Gregory joined. Judge Floyd wrote a dissenting opinion.

BARBARA MILANO KEENAN, Circuit Judge:

In late 2014, several hundred thousand gallons of gasoline spilled from a rupture in a pipeline owned by Plantation Pipe Line Company, Inc., a subsidiary of Kinder Morgan Energy Partners, LP (collectively, Kinder Morgan), near Belton, South Carolina. It is undisputed that the gasoline has seeped into nearby waterways, and the plaintiffs allege that the gasoline has continued to travel a distance of 1000 feet or less from the pipeline to those "navigable waters."

Two plaintiff conservation groups brought a "citizen suit" under the Clean Water Act (the CWA, or the Act), 33 U.S.C. §§ 1251 – 1387, alleging that Kinder Morgan was in violation of the Act for polluting navigable waters without a permit and seeking relief to remediate the ongoing pollution. This case requires us to determine whether citizens may bring suit alleging a violation of the CWA when the source of the pollution, the pipeline, is no longer releasing the pollutant, but the pollutant allegedly is passing a short distance through the earth via ground water and is being discharged into surface waterways.

The district court held that it lacked subject matter jurisdiction under the CWA, because the pipeline has been repaired and the pollutants currently pass through ground water to reach navigable waters. We conclude that the district court erred in holding that it lacked jurisdiction, because citizens may bring suit under 33 U.S.C. § 1365(a) for discharges of pollutants that derive from a "point source" and continue to be "added" to navigable waters. We further hold that the plaintiffs have stated a valid claim for a discharge under the CWA. Accordingly, we vacate the district court's judgment, and remand for further proceedings consistent with this opinion.

I.

A.

In 1972, Congress enacted the CWA to eliminate the discharge of certain pollutants or "effluents" into the "navigable waters" of the United States. See S. Appalachian Mountain Stewards v. A & G Coal Corp. , 758 F.3d 560, 563 (4th Cir. 2014) ; Piney Run Pres. Ass'n v. Cty. Comm'rs of Carroll Cty. , 268 F.3d 255, 264–65 (4th Cir. 2001). The CWA's stated purpose is "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251(a). The federal government's prior regime of water pollution control focused primarily on measuring direct injuries to the Nation's waters using water quality standards. Friends of the Earth, Inc. v. Gaston Copper Recycling Corp. , 204 F.3d 149, 151 (4th Cir. 2000) (en banc) [ Friends of the Earth II ]. In the CWA, however, Congress shifted its regulatory focus for water pollution from water quality standards to limiting discharges of pollutants. See id . One of the CWA's central provisions establishes that "the discharge of any pollutant by any person shall be unlawful." 33 U.S.C. § 1311(a).

The Act authorizes exceptions to this general prohibition in the form of permits issued in accordance with the National Pollutant Discharge Elimination System (NPDES), which allows limited discharges. See 33 U.S.C. §§ 1311(a), 1342 ; S. Fla. Water Mgmt. Dist. v. Miccosukee Tribe of Indians , 541 U.S. 95, 102, 124 S.Ct. 1537, 158 L.Ed.2d 264 (2004) ("[T]he NPDES requires dischargers to obtain permits that place limits on the type and quantity of pollutants."); Friends of the Earth II , 204 F.3d at 151. Both the Environmental Protection Agency (EPA) and state environmental control agencies may issue NPDES permits. See Friends of the Earth II , 204 F.3d at 152. However, consistent with the CWA's general prohibition, a polluter does not violate the statute only when it exceeds limitations in its permit. Instead, a polluter also may be in violation of the statute due to a discharge for which the polluter could not have obtained any permit. See Sierra Club, Lone Star Chapter v. Cedar Point Oil Co. , 73 F.3d 546, 561 (5th Cir. 1996) ("Nothing in the CWA limits a citizen's right to bring an action against a person who is allegedly discharging a pollutant without a permit solely to those cases where EPA has promulgated an effluent limitation or issued a permit that covers the discharge.").

The CWA authorizes both citizens and government agencies to enforce the Act's provisions. Citizen suits under the CWA have the "central purpose of permitting citizens to abate pollution when the government cannot or will not command compliance." Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc. , 484 U.S. 49, 62, 108 S.Ct. 376, 98 L.Ed.2d 306 (1987). The Act contains the following citizen suit provision:

[A]ny citizen may commence a civil action on his own behalf—

(1) against any person (including (i) the United States, and (ii) any other governmental instrumentality or agency to the extent permitted by the eleventh amendment to the Constitution) who is alleged to be in violation of ... an effluent standard or limitation under this chapter....

33 U.S.C. § 1365(a) (emphasis added). An "effluent standard or limitation" is defined to include the Act's central prohibition on the "discharge of any pollutant" without a permit. See 33 U.S.C. §§ 1365(f), 1311(a).

The Act sets forth a technical definition of the term "discharge of a pollutant," which is defined expansively to include "any addition of any pollutant to navigable waters from any point source."¹ 33 U.S.C. § 1362(12)(A). A "point source" in turn is defined as "any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, [or] container...." 33 U.S.C. § 1362(14). The term "navigable waters" is defined in the CWA as "the waters of the United States." 33 U.S.C. § 1362(7). The Supreme Court has interpreted the term "navigable waters" to mean more than waters that...