Supreme Court to Decide: Can Polluters Evade Clean Water Law by Shortening Discharge Pipes?

The Supreme Court heard arguments in November on the scope of the Clean Water Act.

WASHINGTON, D.C. — A case now before the United States Supreme Court will decide an important issue under the Clean Water Act (CWA), and could have a bearing on a case filed by our attorneys against Casella Waste Systems in New Hampshire.

The CWA prohibits the discharge of pollutants from a point source to surface waters unless the discharger has obtained and is complying with a permit. Under the Act, this is known as a National Pollution Discharge Elimination System (NPDES) permit. For 45 years, the United States Environmental Protection Agency (EPA) took the position that discharges from a point source—such as a wastewater discharge pipe—that reach surface waters through hydrologically connected groundwater are subject to this requirement. That’s common sense: The goal of the CWA is to prevent unpermitted discharges from point sources to surface waters, and it should not matter whether the pollution also passes through groundwater before it fouls surface waters. It’s also consistent with the conclusion of four members of the Supreme Court, in a plurality opinion authored by Justice Antonin Scalia, that the Act “does not forbid ‘the addition of any pollutant directly to navigable waters from any point source,’ but rather the ‘addition of any pollutant to navigable waters.’”

Under the Trump administration, however, the EPA has done an about-face. In a case pending before the Supreme Court, the agency has argued that companies and other dischargers are not required to obtain NPDES permits for pollution discharges that reach surface waters through the groundwater. The facts of that case are striking. The County of Maui, Hawaii, pumps sewage into underground wells, with the intention and knowledge that those wells convey the sewage through the groundwater into the Pacific Ocean. Yet Maui, and the EPA, argue that no CWA permit is required.

In a hearing held on Nov. 6, 2019, members of the Supreme Court expressed skepticism about this argument. Justice Brett Kavanaugh noted that it “sounds like the ‘directly’ argument that Justice Scalia’s opinion rejected.” Chief Justice John Roberts questioned whether running a discharge pipe through “any little bit of groundwater” would be enough to avoid CWA liability. And Justice Stephen Breyer characterized Maui’s position as a “road map for people who want to avoid the point source regulation,” noting that they could “cut off … the pipes … five feet from the ocean or five feet from the navigable stream.”

Meanwhile, NELC’s CWA case against Casella Waste Systems for the unpermitted discharge of landfill wastes to New Hampshire’s historic Ammonoosuc River is on hold until the Supreme Court issues its opinion in the Maui case, which is expected this spring. Although he acknowledged that the Casella case involves a different issue, U.S. District Court Judge Paul Barbadoro reasoned that the Supreme Court’s opinion might provide guidance that would be helpful in his disposition of our case.

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Other Recent NELC Litigation at a Glance: A Quick Look at What’s on Our Plate

Part of the NELC team at the U.S. Steel plant tour (left to right): attorney Josh Kratka, engineering expert Ranajit Sahu, co-counsel Dave Nicholas, and engineering expert Mike Plunket.


Environment Texas, Port Arthur Community Action Network, Sierra Club v. Valero Energy Corp

Served a notice of intent to sue:
May 22, 2019
Current Status: Last spring, NELC attorneys sent a notice of intent to sue to Valero Energy Corporation’s Port Arthur Refinery for repeated violations of the Clean Air Act. On the 58th day of the 60-day notice period, the state of Texas filed its own lawsuit, using the violations outlined in the NELC notice letter as a roadmap and precluding the citizen plaintiffs from filing suit. NELC attorneys are keeping a close eye on the state enforcement action to ensure Valero is held appropriately accountable.


PennEnvironment, Clean Air Council v. United States Steel Corp

Complaint Filed: April 29, 2019
Current Status: Last spring, NELC attorneys filed a lawsuit against U.S. Steel’s Clairton Coke Works and two related U.S. Steel facilities for violations of the Clean Air Act caused by a massive fire that knocked out key pollution control devices for months. Since then, the parties have exchanged discovery requests, and NELC attorneys are in the midst of reviewing discovery documents. In November, in preparation for court- ordered mediation, representatives of the plaintiff groups, along with NELC attorneys, participated in a site visit of the Clairton Works facility to observe its operations and the location of the fire. Should mediation not prove successful, the information gathered on the site visit will be useful for future motions and for a potential trial.


Environment Michigan, Ecology Center v. Detroit Renewable Power

Served a notice of intent to sue:
Jan. 29, 2019
Current Status: Last winter, NELC attorneys sent a notice of intent to sue to Detroit Renewable Power (DRP), the operator of Michigan’s largest trash incinerator. The DRP incinerator burned nearly 1 million tons of solid waste each year, creating steam to power electricity generation, but also releasing highly dangerous air pollutants, such as benzene, toluene, and formaldehyde, during frequent periods of incomplete combustion. On March 27, in response to NELC’s notice, the company announced that it was permanently shutting down the incinerator—a huge victory for the surrounding communities. Currently, we are negotiating a formal consent decree with DRP to ensure that the facility remains shut down.

ExxonMobil’s refinery and chemical plant complex is the largest manufacturing complex in the country.

Environment Texas, Sierra Club v. ExxonMobil
Complaint Filed: Dec. 13, 2010
Current Status: On Nov. 7, 2018, a three- judge panel of the Fifth U.S. Circuit Court of Appeals heard oral arguments on ExxonMobil’s appeal of a decision holding it accountable for 16,386 days of violation of the Clean Air Act at its Baytown, Texas, oil refinery and chemical plant complex and imposing a $19.95 million penalty. NELC attorneys are awaiting the Fifth Circuit’s decision on Exxon’s appeal.

Environment Florida, Sierra Club v. Pilgrim’s Pride Corporation
Complaint filed: March 9, 2017
Consent Decree: Jan. 16, 2018
Current Status: Two years ago, NELC attorneys filed a suit against one of the world’s largest chicken producers,
ExxonMobil’s refinery and chemical plant complex is the largest manufacturing complex in the country.
Pilgrim’s Pride, alleging that the company committed 1,377 days of Clean Water Act violations by discharging wastewater into the Suwannee River at its northern Florida poultry processing plant. After court-ordered mediation, Pilgrim’s Pride entered into a consent decree, which imposed a $1.43 million civil penalty, of which $1.3 million was allocated to a Sustainable Farming Fund designed to improve soil, groundwater, and surface water quality. The decree also mandated a comprehensive study of the plant’s discharges to the river, leading to upgrades of the plant’s wastewater treatment facilities. NELC attorneys are monitoring the plant’s progress toward the deadlines set forth in the consent decree, and are prepared to enforce the significant stipulated penalties outlined in the agreement for any wastewater violations or failures to implement environmental upgrades.

Environment Texas, Sierra Club v. Pasadena Refining Systems, Inc.
Complaint filed: March 2, 2017
Consent Decree: July 31, 2018
Current Status: In the year since the settlement of our Clean Air Act case against Pasadena Refining System, Inc.
(PRSI), the company has worked to implement the terms of the consent decree negotiated by NELC attorneys. PRSI has significantly reduced its illegal air emissions, from nearly 100,000 pounds per year to just over 8,000 pounds for the first year of the decree, and has paid more than $3 million to start a vehicle emission reduction fund. This fund aims to improve air quality by introducing zero-emission vehicle fleets into Harris County, Texas, and establishing the necessary infrastructure to support them, such as electric charging stations.

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Litigation Attorney Matthew Donohue Joins NELC

Matt joins us with years of experience with lawsuits against major companies under his belt.

BOSTON—In October, NELC welcomed attorney Matthew Donohue to the team.

Matt joins NELC following six years at a boutique litigation firm in Boston. There, he represented individuals suffering from serious illnesses as a result of exposure to toxic substances. In so doing, Matt prosecuted complex lawsuits against many of the nation’s largest corporations.

Matt graduated from Skidmore College in 2007 and received his J.D. from Boston College Law School in 2012. There, he advocated for progressive constitutional principles as president of the Boston College chapter of the American Constitution Society, and provided free legal services to low-income families through the school’s nonprofit legal clinic.

Outside of work, Matt is an avid golfer, home cook, and Boston sports fan.

“I couldn’t be more excited to join the talented attorneys and staff at NELC in the fight to hold polluters accountable and preserve our natural resources,” notes Matt. “It is vitally important work.”

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