• Mark Ryan

Kinder Morgan Briefs and EPA Covid Enforcement Memo

You will recall that at the time the Supreme Court heard the Maui case, it sent back to the 4th Cir. the Kinder Morgan case, which turned on similar facts. It involved discharges from a ruptured pipeline to the adjacent river via groundwater. The 4th Cir. had ruled that the discharges are jurisdictional. On July 1, the parties submitted briefs to the court arguing the significance of Maui. Defendants, as one might expect, argue that the functional equivalent test in Maui is not met, and the 4th Cir. should affirm the district court's dismissal of the lawsuit. In the alternative, defendants ask for a remand for further fact finding by the lower court. Plaintiffs, equally expectedly, argue that the facts of the case show that the discharge in question meets the standard for CWA jurisdiction set out in Maui. I suspect the plaintiffs have the better argument here, especially since the 4th Cir. has already ruled in their favor. This will be an interesting case to keep an eye on. Here's a summary of the 2018 4th Cir. decision.

Upstate Forever v. Kinder Morgan Energy, 887 F.3d 637 (4th Cir. 2018) (reversing district court, held that discharges from a groundwater plume from a ruptured pipeline that traveled 1000 feet via groundwater into a stream was an ongoing point source discharge even though the rupture had long been repaired, and the pipeline itself was no longer leaking; the definition of “discharge of pollutant” does not place temporal conditions on the discharge of a pollutant from a point source; the CWA is a strict liability statute; a pipeline is a point source; CWA does not bar plaintiff from seeking injunctive relief after the polluter has repaired the initial cause of the pollution; note dissent)

In other news, EPA has decided to terminate its controversial March 26, 2020 Covid enforcement policy. The termination takes effect on August 31, 2020. See my March 30 blogpost for more on the original order. The rationale for termination is not entirely clear, but appears to match the White House's rosy forecast for the imminent demise of the pandemic. Here's a link to the termination memo:

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