• Mark Ryan

Five New CWA Cases

Here are five new cases dealing with global warming, train derailments, 404 permit challenges and an industrial stormwater settlement. The Melton Properties case below raises an old, but still interesting question: can a defendant be held liable for the after effects of a one-time discharge such as a spill, where the pollutants remain in the environment and continue to seep out. The said no.

Conservation Law Foundation v. Shell Oil Products U.S., 2020 WL 5775874 (D.R.I. 2020) (on motion to dismiss in challenge to defendants’ failure to adapt a shipping terminal to prepare for global warming, held that plaintiffs state a plausible claim by arguing that NPDES permit required “good engineering practices” and SWPPP for dealing with catastrophic weather; prior owner of terminal may not be dismissed where record shows that it may have had operational control; dismissal not appropriate for violation that existed at time of filing of complaint, but which has subsequently ceased; rejected application of Burford abstention doctrine)

Melton Properties, LLC v. Illinois Central Railroad Co., 2020 WL 5806890 (N.D. Miss. 2020) (on motion for summary judgment in case involving spill of toxic substances from a train derailment, held that plaintiffs’ claims are ripe despite possible future cleanup requirement from state agency; a single event (such as a spill or leak) from a point source may not be considered an ongoing violation so as to warrant CWA relief)

Altamaha Riverkeeper v. USACOE, 2020 WL 5837650 (S.D. Ga. 2020) (on motion for summary judgment in case challenging 404 permit for construction of t-head groin on island spit, held that plaintiffs have standing to raise challenge; Corps properly considered cumulative impacts and practicable alternatives to project; Corps must be given deference in how it defines the appropriate geographic scope of a cumulative impact analysis; Corps was not arb. & cap. in granting permit modifications)

SOSS2, Inc. v. USACOE, 2020 WL 5814326 (M.D. Fla. 2020) (on motion for summary judgment in case involving challenge to 404 permit for beach nourishment, held that Corps complied with 404(b)(1) guidelines; Corps’ scientific conclusions and analyses about the project’s compliance with the CWA deserve substantial deference)

Communities for a Better Env. V. Everport Terminal Services Inc., 2020 WL 5847308 (C.D. Cal. 2020) (consent decree in industrial stormwater case entered providing for $33,000 in attorney fees, $35,000 payment to local environmental foundation and requiring defendant to update and comply with its SWPPP)

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